29 March 2005

Virginia Law Running Afoul of the Constitution

In Virginia a composite artist sketch of the defendant is not a statement within the meaning of the hearsay rule. Currently, there are two requirements for it to be admissible: 1) the artist’s sketch was obtained through a process that was not impermissibly suggestive, and 2) the person who gave the artist the information properly identifies the sketch. An artist’s testimony is not a prerequisite for admissibility so long as the above two requirements are met. Harrison v. Commonwealth, 9 Va. App. 187 (1989) (holding that a police artist sketch is not hearsay). See also Brummett v. Commonwealth, 1996 Va. App. LEXIS (1996) (applying Harrison to find sketch admissible).

This law runs afoul of the Supreme Court ruling in Crawford v. Washington, 541 U.S. 36 (2004). The Supreme Court held that the 6th Amendment provides a procedural guarantee to cross examine and test a statement, it the defendant shows that the statement is testimonial in nature. A statement is considered testimonial if it is prepared for or given during trial. Among other examples, the Supreme Court stated that police reports are definitely considered testimonial for purposes of the 6th Amendment. Thus, Virginia Courts should definitely consider police artist sketches as hearsay.

Why does this matter? Since Virginia Courts do not consider police artist sketches as hearsay, the defendant has no right to confront the officer that made the sketch. In certain cases it can be critical to test the officer that made the sketch and the environment that was present at the time. Research has shown that witnesses under stressful situations unconsciously reconstruct what has occurred from what they assume must have occurred. Witnesses also tend to conform their continuing perception of their idea of what an object should like was they have classified the figure. This means that having a witness make a composite photo or sketch of an attacker in a context differing from that of the original observation is likely to introduce numerous errors. Once a witness has a picture in their mind, they will minimize the differences in appearance between the sketch and a suspect resembling it. For an indepth look at the unreliability of eyewitness identifications See Did Your Eyes Decieve You? Expert Psychological Testimony on the Unreliability of Eyewitness Identification, 29 Stan. L. Rev. 970 (1977).

See Public Policy v. Constitutional Rights for a discussion on other Virginia Laws that potentially violate the Constitution.


Anonymous said...

I'm confused. Why do you believe that the sketch artist is the declarant for hearsay purposes? Assume the sketch artist came to court...who cares? Don't you really want to cross-examine the crime-victim who made the statements that are responsible for rendering the drawing?

The problem with the admissibility of police reports isn't lack of ability to cross examine the officer who recorded witness statements in the report. All the cop will do is say that he recorded the statements correctly, but that doesn't leave any real way to test the veracity of the underlying statements. Instead, the problem is the witness statements themselves, which are hearsay and not subject to cross if the person who made the statement to the cop doesn't testify.

SavannahDad said...

Actually it would be double-hearsay. The artist's statement of the witness' observations.