T EX. CODE CRIM. PROC. art. 38.071. 1

Crawford v. Washington, 541 U.S. 36 (2004); see also Davis v. Washington, 547 U.S. 2

813 (2006).

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-0447-06

RODOLFO RANGEL, Appellant

v.

THE STATE OF TEXAS

ON DISCRETIONARY REVIEW

FROM THE SECOND COURT OF APPEALS

WICHITA COUNTY

COCHRAN, J., filed an opinion dissenting to the dismissal of the petitions for

discretionary review, in which JOHNSON, J., joined.

O P I N I O N 

I respectfully dissent to the Court’s action in dismissing the State Prosecuting

Attorney’s (SPA) and Appellant’s petitions for discretionary review. Appellant raises

important questions under the Sixth Amendment concerning the constitutionality of the childvideotape statute in the post-Crawford world. Other courts have cited Rangel, both 1 2
Rangel Dissenting Opinion Page 2

See Morales v. State, 222 S.W.3d 134, 145 (Tex. App.–Corpus Christi 2006, no pet.) 3

(holding that where the trial court admitted the original “testimonial statement” videotape and

two follow-up videotapes–in which the original interviewer asked unavailable child complainant

interrogatory questions that had been submitted by defense counsel–under article 38.071, the

follow-up out-of-court videotapes were a suitable substitute for actual cross-examination;

concurrence cited Rangel as authority); Wells v. State, No. 11-05-00335-CR, ___ S.W.3d ___,

2007 Tex. App. LEXIS 8413, *9 (Tex. App.–Eastland Oct. 25, 2007, n.p.h.) (noting Rangel as

among conflicting authorities); Lollis v. State, 232 S.W.3d 803, 809 (Tex. App.–Texarkana 2007,

no pet.) (citing Rangel for the proposition that out-of-court statements by young children to

investigators may be “testimonial” under Crawford); Martinez v. State, 236 S.W.3d 361, 371

(Tex. App.–Fort Worth 2007, pet. dism’d) (citing Rangel for the proposition that the child’s

hearsay statements were “testimonial” because “they were made two months after the

emergency”); Ficarro v. State, No. 13-03-00439-CR, 2007 Tex. App. LEXIS 3166 (Tex.

App.–Corpus Christi Apr. 26, 2007, pet. dism’d) (not designated for publication) (citing Rangel

for the proposition that, under Art. 38.071, “the right to confrontation is not violated if the

defendant is given the opportunity to submit written interrogatories to an unavailable witness.”);

Hernandez v. State, 946 So.2d 1270, 1284-85 (Fla. App. 2007) (citing Rangel and other

authorities for the proposition that a child’s out-of-court statements to investigators gathering

evidence for possible prosecution are “testimonial” under Crawford); State v. Bentley, 739

N.W.2d 296, 300 (Iowa 2007) (citing Rangel and holding that child’s out-of-court videotaped

statements to police were testimonial and thus inadmissible under the Confrontation Clause);

State v. Henderson, 160 P.3d 776, 785, 792 (Kansas 2007) (citing Rangel and holding that

videotaped interview of child made by social worker was “testimonial” and violated

Confrontation Clause because child did not testify at trial); State v. Siler, 876 N.E.2d 534, 543

(Ohio 2007) (citing Rangel and holding that admission of child’s hearsay statements violated

Davis).

favorably and unfavorably, on this critical and recurring issue. Trial and appellate courts 3

across the country are attempting to find a suitable accommodation between the defendant’s

constitutional right of confrontation and a young child’s inability to testify fully and

accurately in the courtroom setting. We should not shirk our duty in resolving appellant’s

constitutional question and in providing guidance to the Texas bench and bar. 

Appellant was convicted of various counts of aggravated sexual assault, indecency

with a child, and attempted indecency with a child, involving his own or his wife’s children.
Rangel Dissenting Opinion Page 3

Rangel v. State, 199 S.W.3d 523, 537 (Tex. App.–Fort Worth 2006) (“Having 4

determined that C.R.’s statements were testimonial, C.R. was unavailable, and appellant had an

opportunity to cross-examine C.R. through written interrogatories, we hold that appellant was not

denied his Sixth Amendment right to confrontation.”).

 Appellant’s ground for review asks: 5

Whether appellant’s Sixth Amendment rights were violated when the unavailable

complainant’s testimonial hearsay statements were admitted into evidence

pursuant to statutory authority[?]

The S.P.A.’s ground for review asks:

Did the court of appeals apply the correct analysis to determine that the statement

of a four-year-old child was testimonial under Crawford v. Washington?

Appellant’s daughter, C.R., was six years old at the time of trial and was one of the three

children he was found to have molested. Before trial, the State moved to admit an out-ofcourt forensic videotape of her statements taken under Article 38.071 in lieu of her live, incourt testimony. The appellant objected that using the videotape instead of live testimony

violated both his right to confrontation and cross-examination. The trial court admitted the

videotape, and C.R. did not testify. The court of appeals concluded that the forensic

videotape was “testimonial” under Crawford, but that appellant’s confrontation rights were

not violated because he could have submitted written questions for C.R. to answer during

another out-of-court videotape session. 

4

We granted both appellant’s and the SPA’s petitions for discretionary review to decide

whether the provisions of Article 38.071 allowing the admission of an out-of-court, ex parte

videotaped statement by a child victim in lieu of that child’s courtroom testimony violate a

defendant’s right of confrontation.5

I would hold that the child-videotape statute, Article 38.071, cannot be construed to
Rangel Dissenting Opinion Page 4

allow the admission of out-of-court testimonial hearsay statements unless the child testifies

at trial or the defendant has had a prior opportunity to cross-examine that child. To the extent

that the statute cannot accommodate the demands of the Confrontation Clause as explained

in Crawford and Davis, it violates appellant’s Sixth Amendment rights. 

I.

Debbie Adams, a Child Protective Services (CPS) investigator, began investigating

appellant and his wife, Rosa, for possible child abuse in January of 2003. A week later, CPS

removed the four children from appellant’s home after one of them, G.T., told Ms. Adams

that appellant has sexually abused her. The children were placed in foster care and received

extensive counseling. Local law-enforcement officials were also notified, and Detective

Julie Elliot began a criminal investigation into the alleged sexual abuse. 

C.R. was appellant’s biological daughter; she was four years old at the time she was

placed in foster care. Cheryl Polly, a licensed professional counselor, was C.R.’s therapist.

She testified that C.R. exhibited behaviors and symptoms consistent with being the victim

of sexual abuse: She experienced nightmares, bed-wetting, sexual acting out, and defiance.

 According to Ms. Polly, C.R. said that appellant had inserted his finger into her genitals. By

the time of trial, C.R.’s symptoms had largely subsided, but she tended to “dissociate” or

“zone out” when she was asked about appellant’s abuse. 

Two months after the children had been removed from their parents’ home, Camille

Cleveland, a CPS investigator, conducted a videotaped “forensic interview” of C.R. at
Rangel Dissenting Opinion Page 5

 As the proponent of the videotape, the State had the burden to demonstrate its 6

admissibility. TEX. R. EVID. 104(a). See Alvarado v. State, 912 S.W.2d 199, 215 (Tex. Crim.

App. 1995). To the extent that the State failed to show the circumstances surrounding the

videotaping to establish that it was a non-testimonial interview, it has failed in its burden of

proof.

“Patsy’s House,” the Wichita Children’s Advocacy Center. Ms. Cleveland explained that

“it’s a safe environment. Alleged perpetrators or someone that has been accused of abusing

a child. . . are not allowed. . . . There’s also a few Child Protective Service workers housed

there as well as some law enforcement officers so we can work the cases jointly.” Ms.

Cleveland conducted the videotaped interview on March 26, 2003. Detective Julie Elliott

watched the interview.

Before trial, the State moved to admit the March 26 videotape instead of calling C.R. th

as a witness. Appellant objected. Therefore, the trial judge conducted a pretrial hearing to

determine whether C.R. was an “unavailable” child witness and if the videotaped interview

could be used in lieu of her in-court testimony under Article 38.071. At that hearing, Ms. 6

Polly explained that “testifying live in the courtroom would be extremely traumatic” for C.R.

In her opinion, testimony via closed circuit TV would be less traumatic, but she still did not

think that C.R. “would be able to do it because there would still be strangers involved in

that.” The trial judge expressed his concern at attempting “to balance both sides of the

potential right–harm to the child as well as the defendant’s right to confrontation.” 

Appellant’s counsel objected to the proposal as violating both his confrontation and crossexamination rights:
Rangel Dissenting Opinion Page 6

Well, Judge, not only are we dealing with a confrontation issue here, we’re

dealing with a cross-examination issue here. If the–if the State is allowed to

introduce the videotape of [C.R.] and in connection with that there’s a finding

that she’s unavailable, that essentially– that essentially puts me in this position.

Camille Cleveland, a worker for CPS, who is clearly aligned with the State–

you know, they may–they may take a position differently, but CPS is clearly

aligned with the State in the prosecution of this case. Was allowed to

interview in an environment subject only to the control of CPS, this one

witness, present questions to this witness, receive the responses from that

witness, and that is going to be the sum total testimony from this witness.

Counsel elaborated further: The procedure was unfair because CPS “had their chance, but

I don’t get mine. That’s not fair to my client. And so what the State is proffering is saying,

Judge, let us make our opportunity to get this five-year-old to tell the court and jury what we

want to, but we won’t give the opportunity to the defendant to in any meaningful way to

rebut that.” 

The trial judge expressed his concern that appellant’s attorney would “grill” C.R. and

told him, 

[Y]ou have a very deep voice. You come across very strongly. I mean I think

taking all of that into consideration and the fact that–what I would primarily

see I think is the fact that the doctor is going to testify that there were some

very objective signs of abuse is what’s been represented to me and

that–I’m–I’m just not willing to put a four- or five-year-old kid through that

right now based upon what I know. So I’m going to grant the State’s motion.

The trial judge did state that he might reconsider his ruling during trial, once he had seen the

videotape, “if it looks like she has been really guided by her nose down a path that she as a

four- or five-year-old child would not go.” Thus, during trial, appellant’s attorney also

objected to the admission of the videotape as not having been conducted by “a neutral
Rangel Dissenting Opinion Page 7

See TEX. CODE CRIM. PROC. Art. 38.071, § 2(a) (“The recording of an oral statement of 7

the child made before the indictment is returned or the complaint has been filed is admissible

into evidence if the court makes a determination that the factual issues of identity or actual

occurrence were fully and fairly inquired into in a detached manner by a neutral individual

experienced in child abuse cases that seeks to find the truth of the matter.”).

 Appellant was also sentenced to fifty years’ imprisonment on a separate aggravated 8

sexual assault count, as well as twenty years’ and ten years’ imprisonment on other counts, none

of which are at issue in the appeal before us.

Rangel, 199 S.W.3d at 532. 9

Id. 10

Id. at 534-35 (stating that the videotaped interview was a “structured, formalized 11

questioning of C.R. by the [CPS] investigator” and is was “more akin to the types of ex parte

examination discussed and condemned in Crawford than a ‘casual remark to an acquaintance’ or

even to initial statements made to a police officer responding to a call,” and noting that C.R. was

describing past events, not facing an emergency).

individual in a detached manner.” That objection was also overruled. The jury convicted 7

appellant of most, but not all, of the charges, and the trial court sentenced him to fifty years’

imprisonment on the aggravated sexual assault count involving C.R.8

On appeal, appellant claimed, inter alia, that Article 38.071 “is unconstitutional as

applied to him because it denies him his Sixth Amendment right to confrontation.” As the 9

court of appeals said, “Appellant claims that C.R.’s videotaped interview is testimonial

hearsay, and that regardless of whether she was unavailable, he did not have a prior

opportunity to cross-examine her, so the interview is inadmissible.” The court of appeals 10

agreed that C.R.’s videotaped statement was “testimonial” under Crawford and Davis, and 11

that Article 38.071 “clearly contemplates that a child’s statement admitted under [that article]
Rangel Dissenting Opinion Page 8

Id. at 535. 12

Id. at 536-37; see TEX. CODE CRIM. PROC. art. 38.071, § 2(b). This section provides as

13

follows:

If a recording is made under Subsection (a) of this section and after an indictment

is returned or a complaint has been filed, by motion of the attorney representing

the state or the attorney representing the defendant and on the approval of the

court, both attorneys may propound written interrogatories that shall be presented

by the same neutral individual who made the initial inquiries, if possible, and

recorded under the same or similar circumstances of the original recording with

the time and date of the inquiry clearly indicated in the recording.

will function as testimony in a criminal case.” However, the court of appeals then held that 12

Article 38.071 “provides an effective alternative to the traditional face-to-face confrontation

at trial” because it permits a defendant to submit written questions to the same person who

had originally interviewed the child and those questions could, with the approval of the trial

court, be posed to the child during a second videotaped interview. 

13

Thus, the primary question before this Court is whether written interrogatories are a

suitable substitute for face-to-face confrontation and cross-examination in a criminal trial.

The answer is obvious to me: No. The submission of written interrogatories is no substitute

for in-court, sworn testimony, subject to the Sixth Amendment’s requirements of

confrontation and cross-examination. 

II.

But before this Court could address appellant’s contention that the court of appeals

erred by equating Article 38.071’s interrogatory procedure with the type of confrontation and

cross-examination that the Sixth Amendment requires, it should address the SPA’s cross-
Rangel Dissenting Opinion Page 9

See, e.g., Wall v. State, 184 S.W.3d 730, 742-43 (Tex. Crim. App. 2006) (stating that 14

“whether a statement is testimonial under Crawford is determined by the standard of an

objectively reasonable declarant standing in the shoes of the actual declarant”) (citing Crawford,

541 U.S. at 52, which set out one definition of “testimonial” statements as those “‘statements that

were made under circumstances which would lead an objective witness reasonably to believe that

the statement would be available for use at a later trial,’” and United States v. Cromer, 389 F.3d

662, 675 (6th Cir. 2004) (stating that the decisive inquiry under a Confrontation Clause objection

to hearsay is “whether a reasonable person in the declarant’s position would anticipate his

statement being used against the accused in investigating and prosecuting the crime”)).

petition which claims that the court of appeals erred in holding that C.R.’s videotaped

statement was “testimonial” under Crawford. If C.R.’s statements were not “testimonial,”

then the Sixth Amendment has no applicability and the videotape, taken in accordance with

Article 38.071, is admissible under the statutory scheme as an exception to the hearsay rule.

A. C.R.’s Videotaped Interview Was a Testimonial Statement.

The SPA argues that C.R.’s videotaped interview is not a testimonial statement

because there is no evidence that C.R. herself viewed the answers as “testimony.” The SPA

posits that “a statement made by a child to a government employee is testimonial only if

made under circumstances that would cause a reasonable person of the same level of maturity

or intellectual functioning as the child to believe the statement will be used against the

defendant in a criminal prosecution.” 

After Crawford, but before Davis, this was an entirely defensible position because the

Supreme Court implied in Crawford that one should look at the expectations of the declarant

in determining whether he intended to make (or knew that he was making) a statement that

might be used as evidence in a future criminal proceeding. A few other state courts, in 14
Rangel Dissenting Opinion Page 10

See, e.g., People v. Vigil, 127 P.3d 916, 924 (Colo. 2006) (holding, in child abuse 15

prosecution, that child’s statements to his doctor during medical exam were not testimonial;

stating that, “[b]ased on our reading of Crawford and our review of other courts deciding this

issue, we hold that the ‘objective witness’ language in Crawford refers to an objectively

reasonable person in the declarant’s position. Applying this test to the instant case, we determine

that an objectively reasonable person in the declarant’s position would not have believed that his

statements to the doctor would be available for use at a later trial.”).

 143 P.3d 1047 (Colo. Ct. App. 2005). 16

Id. at 1051. 17

Id. at 1053. 18

People v. Sharp, No. 06SC18, 2006 Colo. LEXIS 826 (Colo. Oct. 10, 2006) (not 19

designated for publication).

post-Crawford, pre-Davis cases, had taken this approach with respect to statements of young

children. For example, the SPA cites People v. Sharp, a Colorado child-abuse prosecution 15 16

in which the child was interviewed on videotape by a forensic interviewer outside the

presence of the police. The Colorado court of appeals stated that the “inquiry is whether,

under the circumstances, the declarant intended to bear testimony against the accused. The

determinative factor in this inquiry is the declarant’s awareness or expectation that his or her

statement may later be used at trial.” Under that test, the child’s statements to the social 17

worker were not testimonial. However, the Colorado Supreme Court vacated and remanded 18

Sharp after the United States Supreme Court changed the focus of the inquiry in Davis v.

Washington. 

19

Under Davis, the primary focus in determining whether an out-of-court statement is

“testimonial” is upon the objective purpose of the interview or interrogation, not upon the
Rangel Dissenting Opinion Page 11

Davis v. Washington, 547 U.S. at ___, 126 S.Ct. at 2273-74. The Supreme Court 20

explained:

Statements are nontestimonial when made in the course of police interrogation

under circumstances objectively indicating that the primary purpose of the

interrogation is to enable police assistance to meet an ongoing emergency. They

are testimonial when the circumstances objectively indicate that there is no such

ongoing emergency, and that the primary purpose of the interrogation is to

establish or prove past events potentially relevant to later criminal prosecution.

Id. See Tom Lininger, Reconceptualizing Confrontation after Davis, 85 TEX. L. REV. 271, 280

(2006) (“The Davis. . . reasoning represents a conspicuous departure from the Crawford ruling.

The Crawford Court had focused on the mindset of the declarant: Did she give her statement

under circumstances in which she could foresee the later prosecutorial use of her words? The

Davis opinion shifted the focus from the declarant’s state of mind to the officers’ purpose in

questioning the declarant.”) (footnote omitted). As explained by one appellate court in the

context of holding that a forensic interview of a small child by a social worker investigating child

abuse was “testimonial” under the new Davis standard, 

the test is not how the person questioned views the interrogation, but what the

purpose of the statement was as determined by an objective view of the

circumstances. It makes more sense to ask whether an objective person, looking at

the circumstances of the questioning, would consider the purpose of the

statements as aiding the investigation. Was it a statement taken to address an

immediate situation and see what is going on, like a mother's questioning of her

child in this case and like the 911 emergency call in Davis, or was it a step taken

in a police investigation after the action is over for purposes of aiding the

investigation and potential prosecution, like Amy Hammon's statements to police

in Hammon, and like [child victim’s] statements to [social worker] during the 

interview?

In the Interest of S.R., 920 A.2d 1262, 1267 (Pa. Super. Ct. 2007).

People v. Sharp, 155 P.3d 577, 581 (Colo. Ct. App. 2006). 21

declarant’s expectations. Thus, on remand, the Colorado court of appeals reversed Sharp’s 20

conviction and remanded for a new trial because the objective purpose of the five-year-old

child’s videotaped statement to a private forensic interviewer at a children’s advocacy center

was to elicit statements from her to be used to prosecute the defendant in a later criminal

proceeding. The court concluded that “such statements are inherently testimonial because 21

they ‘are an obvious substitute for live testimony, because they do precisely what a witness
Rangel Dissenting Opinion Page 12

Id. (quoting Davis, 547 U.S. at ___, 126 S. Ct. at 2278). 22

 867 A.2d 314 (Md. 2005). 23

Id. at 324. 24

Id. at 330. See also United States v. Bordeaux, 400 F.3d 548 (8th Cir. 2005) (reversal

25

where statement was made to “forensic interviewer” and child testified by closed circuit

television); People v. Sisavath, 13 Cal. Rptr. 3d 753 (Cal. Ct. App. 2004) (child victim

videotaped statement to forensic specialist inadmissible).

 See, e.g., State v. Hooper, No. 33826, __ P.3d ___, 2007 Ida. LEXIS 234 (Idaho 26

December 24, 2007) (holding that videotaped statements the child victim made to nurse during

interview at a sexual-trauma abuse-response center were testimonial because the circumstances

surrounding the interview indicated that the primary purpose of the interview was to establish

does on direct examination.’”22

Even before Davis, many courts had, like the Fort Worth Court of Appeals in the

present case, followed the reasoning of State v. Snowden, which had held that a statement 23

is testimonial if it was “made or elicited” for the primary purpose of being used in a future

criminal proceeding. In Snowden, a child-abuse prosecution involving the use of a 24

videotaped statement made to a social worker at a juvenile center, the appellate court stated,

[I]f a statement is made under such circumstances that would lead an objective

person to believe that statements made in response to government interrogation

later would be used at trial, the admission of those statements must be

conditioned upon Crawford’s requirements of unavailability and a prior

opportunity to cross-examine.25

Virtually all courts that have reviewed the admissibility of forensic child interview statements

or videotapes after the Davis decision have found them to be “testimonial” and inadmissible

unless the child testifies at trial or is presently unavailable but the defendant has had a prior

opportunity for cross-examination.26
Rangel Dissenting Opinion Page 13

past events potentially relevant to later criminal prosecution as opposed to meeting the child’s

medical needs); State v. Henderson, 160 P.3d 776 (Kan. 2007) (reversible error to admit threeyear-old child’s videotaped statement to social worker taken at government facility to gather

evidence against alleged perpetrator when child did not testify at trial); State v. Justus, 205

S.W.3d 872 (Mo. 2006) (while social worker’s job was to protect child, “primary purpose” of

videotaped statements was to establish past events); State v. Blue, 717 N.W.2d 558 (N.D. 2006)

(videotaped statement to forensic interviewer at child advocacy center inadmissible); State v.

Pitt, 147 P.3d 940 (Ore. Ct. App. 2006) (reversible error to admit “testimonial” videotaped

statements made by two children to social worker at child abuse assessment center when children

did not testify at trial); In the Interest of S.R., 920 A.2d 1262 (Sup. Penn. 2007) (reversible error

to admit videotape of child victim’s statement to forensic DHS interviewer for the purpose of

investigation and possible prosecution when child did not testify at juvenile’s adjudication

hearing).

 In Henderson, the Kansas Supreme Court explicitly rejected the same argument as that 27

made by the SPA in the present case:

The amicus American Prosecutors Research Institute urges us to adopt an ageequivalent standard when determining whether a child’s statement is testimonial.

In support, it cites six studies evaluating what children understand about court and

court-related concepts. Like the Court of Appeals, we expressly reject its specific

argument that the videotaped interview was not testimonial solely because a 3-

year-old child would have no reasonable expectation her statements will later be

used at trial. We observe that its argument heavily relies upon the language from

Crawford, 541 U.S. at 51-52, that describes testimonial statements as those “made

under circumstances which would lead an objective witness reasonably to believe

that the statement would be available for use at a later trial.” Indeed, the case

upon which it principally relies, State v. Bobadilla, 709 N.W.2d 243 (Minn.

2006), was decided before Davis. We also observe that under the Institute’s

argument, the prosecution is allowed to have its cake and eat it too: The victim is

too young to be competent to testify, as the district court found with 3-year-old

F.J.I., but not too young to have her statement placed in evidence by the State with

no attendant defense right to confront and cross-examine.

160 P.3d at 785. See generally, Myrna S. Raeder, Comments on Child Abuse Litigation in a

“Testimonial” World: The Intersection of Competency, Hearsay, and Confrontation, 82 IND. L.J.

1009, 1023 (2007) (discussing the use of forensic interviews in child-abuse cases; stating that

“Crawford appears to doom the use of multidisciplinary teams in child abuse as a way of

introducing statements of children who do not testify” and lamenting that “Crawford has turned

these best practices into a textbook for creating testimonial statements when the child does not

testify.”); Robert P. Mosteller, Testing the Testimonial Concept and Exceptions to

Confrontation: “A Little Child Shall Lead Them,” 82 IND. L.J. 917, 957 (2007) (collecting postDavis cases, using Snowden as the “archetype” situation, and stating, “Statements secured from

Thus, the SPA’s argument, though a cogent one, does not stand up in a post-Davis 27
Rangel Dissenting Opinion Page 14

children for the explicit purpose of admission in court through a hearsay exception have been

uniformly treated as testimonial.”).

 199 S.W.3d at 536. 28

 Justice Scalia, in his stinging dissent to Maryland v. Craig, 497 U.S. 836 (1990), 29

upholding the use of a two-way closed-circuit television in taking the testimony of a traumatized

child victim, made precisely this point:

The Court’s test today requires unavailability only in the sense that the child is

unable to testify in the presence of the defendant. That cannot possibly be the

relevant sense. If unconfronted testimony is admissible hearsay when the witness

is unable to confront the defendant, then presumably there are other categories of

admissible hearsay consisting of unsworn testimony when the witness is unable to

risk perjury, un-cross-examined testimony when the witness is unable to undergo

hostile questioning, etc. California v. Green, 399 U.S. 149, 26 L. Ed. 2d 489, 90

S. Ct. 1930 (1970), is not precedent for such a silly system.

Id. at 866 (Scalia, J., dissenting).

world. Thus, I would agree that the court of appeals correctly determined that C.R.’s

videotaped statements were “testimonial.” 

B. The Submission of Written Interrogatories Are Not a Substitute for In-Court

Confrontation and Cross-Examination.

After holding that C.R.’s videotaped statement was testimonial and therefore

inadmissible unless she testified at trial (or appellant had had a prior opportunity to crossexamine her), the court of appeals concluded that the submission of written interrogatories

provide “an effective alternative to the traditional face-to-face confrontation at trial.” If this 28

is so, virtually every defendant could happily videotape his unsworn pretrial statement and

then agree to answer the State’s written interrogatories in another ex parte videotape in lieu

of testifying in court and submitting himself to cross-examination. Such a procedure does 29

not inspire confidence, and it is no substitute for in-court cross-examination. 
Rangel Dissenting Opinion Page 15

 541 U.S. at 43. 30

Id. 31

Id. at 49. 32

Id. at 55-56. 33

Id. at 57 (quoting Mattox v. United States, 156 U.S. 237, 244 (1895)). 34

Id. at 61. In Davis v. Alaska, 415 U.S. 308 (1974), the Supreme Court explained that 35

the accused’s right to be confronted with the witnesses against him is more than being allowed to

confront the witnesses physically. The primary interest secured by confrontation is the right of

In Crawford itself, the Supreme Court explained that the Confrontation Clause was

based on the English common law tradition of “live testimony in court subject to adversarial

testing.” The Court noted that this tradition was in contrast to the European civil law that 30

“condone[d] examination in private by judicial officers.” The Supreme Court also noted 31

that depositions or other prior testimony could be admitted against an accused only if he was

present and had an opportunity to cross-examine the witness during that deposition or prior

testimony. The Court explained that a “prior opportunity to cross-examine” was both a 32

“necessary” and “dispositive” requirement to the admission of testimonial statements. And, 33

in ringing terms, the Supreme Court declared that “under no circumstances” shall the

defendant be deprived of “seeing the witness face to face and . . . subjecting him to the ordeal

of a cross-examination.” Finally, the Court explained that the Confrontation Clause 34

provides a procedural guarantee: “It commands, not that evidence be reliable, but that

reliability be assessed in a particular manner: by testing in the crucible of crossexamination.” 

35
Rangel Dissenting Opinion Page 16

cross-examination. The Supreme Court stated, 

Cross-examination is the principal means by which the believability of a witness

and the truth of his testimony are tested. Subject always to the broad discretion of

a trial judge to preclude repetitive and unduly harassing interrogation, the crossexaminer is not only permitted to delve into the witness’ story to test the witness’

perceptions and memory, but the cross-examiner has traditionally been allowed to

impeach, i.e., discredit, the witness. . . . [T]he exposure of a witness’ motivation

in testifying is a proper and important function of the constitutionally protected

right of cross-examination.

Id. at 316. Thus, the prior opportunity to cross-examine required by Crawford must serve that

same function.

People v. Fry, 92 P.3d 970, 978 (Colo. 2004). 36

State v. Lopez, No. SC05-88, ___ So.2d ___, 2008 Fla. LEXIS 1 at *20 (Fla. Jan.10, 37

2008).

 497 U.S. 836 (1990). In Craig, a closely divided, 5-4 Supreme Court held: 38

where necessary to protect a child witness from trauma that would be caused by

testifying in the physical presence of the defendant, at least where such trauma

would impair the child’s ability to communicate, the Confrontation Clause does

not prohibit use of a procedure that, despite the absence of face-to-face

confrontation, ensures the reliability of the evidence by subjecting it to rigorous

adversarial testing and thereby preserves the essence of effective confrontation.

After Crawford, there is no room for arguing that written interrogatories are an

acceptable substitute for live cross-examination. In light of Crawford, the Colorado Supreme

Court held that its preliminary hearings, which are usually restricted to an assessment of

probable cause and limit the defendant’s right of cross-examination, do “not provide an

adequate opportunity to cross-examine sufficient to satisfy the Confrontation Clause

requirements.” More recently, the Florida Supreme Court held that discovery depositions, 36

during which the defendant need not be present, “do not function as the equivalent of the

cross-examination opportunity envisioned by Crawford.”37

The SPA relies heavily upon Maryland v. Craig for the proposition that “the right 38
Rangel Dissenting Opinion Page 17

Because there is no dispute that the child witnesses in this case testified under

oath, were subject to full cross-examination, and were able to be observed by the

judge, jury, and defendant as they testified, we conclude that, to the extent that a

proper finding of necessity has been made, the admission of such testimony would

be consonant with the Confrontation Clause.

Id. at 857. Only one of the Supreme Court justices who joined the majority in Craig is still on

the court. Justice Scalia, who wrote the opinions in both Crawford and Davis, wrote a bitter

dissent in Craig which began as follows:

Seldom has this Court failed so conspicuously to sustain a categorical guarantee

of the Constitution against the tide of prevailing current opinion. The Sixth

Amendment provides, with unmistakable clarity, that “in all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted with the

witnesses against him.” The purpose of enshrining this protection in the

Constitution was to assure that none of the many policy interests from time to

time pursued by statutory law could overcome a defendant’s right to face his or

her accusers in court. 

Id. at 860. 

Id. 39

to confrontation does not guarantee the gold standard in every case.” Possibly not, but Craig

certainly did require that the child testify under oath, be subject to “full cross-examination,

and be observed by the judge, jury, and defendant during that testimony.” And after 39

Crawford and Davis, confrontation and the opportunity for cross-examination are not merely

“the gold standard,” they are categorical imperatives. There is no substitute.

I therefore respectfully dissent to the Court’s decision to dismiss this case as

“improvidently granted.” We should address appellant’s properly preserved and presented

constitutional claim. 

Filed: February 13, 2008

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