Court of Appeals: Psychiatrist's trial testimony about what non-testifying third-parties told her prior to trial "testimonial" under Crawford

People v Goldstein, __ NY3d __ [available here]

The Court of Appeals today handed down an opinion defining for the first time in New York the reach of the Supreme Court's recent decision in Crawford v Washington. The Supreme Court in Crawford left open the most important question--what consitutes a "testimonial" statement? Importantly for criminal defendants, the Appeals (with Judge R.S. Smith writing for the majority) set forth a broad definition of "testimonial", holding that the statements of certain non-testifying third-parties made to the People's retained psychiatrist before trial were testimonial because "we infer that [the third-parties] knew they were responding to questions from an agent of the State engaged in trial preparation. None of them was making 'a casual remark to an acquaintance'; all of them should reasonably have expected their statements 'to be used prosecutorially' or 'to be available for use at a later trial.'" (People v Goldstein, __ NY3d __ [2005].) The Court went on to note "[r]esponses to questions asked in interviews that were part of the prosecution's trial preparation are 'formal' in much the same sense as 'depositions' and other materials that the Supreme Court identified as testimonial . . . Nor do we think the difference between an expert retained by the State and a 'government officer' is of consitutional significance here." (Id.) The Court reversed because the psychiatrist was able to repeat what she was told by these third-party witnesses at trial without those third-parties being available for cross-examination. (Id.)

This is a great opinion that reasonably defines "testimonial" in a broad sense, and should cover most statements by witnesses to police officers during a criminal investigation, autopsy reports (see my previous post on this open question here), and any number of other statements made under express questioning by law enforcement agents.

Judge Read dissented, but only because she would have found the error
harmless. (Id.)

The Goldstein opinion also calls into question Justice Fisher's recent decision in Green v DeMarco (posted about here), where he found DWI certification records not testimonial. Certainly, whatever else the Albany techs servicing the breathalyzers knew or thought about the nature of their calibration work, they should have reasonably known that the calibration records they generated would be used to prosecute DWI defendants. It does not seem to be possible to square Justice Fisher's decision in DeMarco with today's Court of Appeals decision in Goldstein.