In State v. Washington, Washington appealed from his conviction for murder. Washington argued, inter alia, that a "narrative" statement given to police by a witness was inadmissible. In so arguing, he relied on the landmark case of Crawford v. Washington, 541 U.S. 36 (2004). The state Supreme Court declined to apply Crawford and explained the case as follows:
In Crawford, the prosecution introduced tape-recorded statements made to police by Crawford's wife, Sylvia. Id. at 38-40. Resorting to the application of the marital privilege, which generally bars a spouse from testifying without the other spouse's consent, Sylvia did not testify at trial, and was therefore considered an unavailable witness. Id. at 40. On appeal, the court concluded that when the declarant is unavailable, hearsay statements that are testimonial in nature can be admitted into evidence only when the declarant has previously been subjected to cross-examination. Id. at 68. The court's analysis was rooted in a defendant's Sixth Amendment right to confrontation. In the instant case, had Cropper been unavailable as a witness at trial, Crawford would be controlling and the admission of her statement likely error. However, because Cropper was available and did in fact testify at trial, a confrontation clause analysis under Crawford is not required.
Crawford has been much cited by criminal defense lawyers to keep out of evidence certain out-of-court statements. This opinion provides needed clarification on the Crawford issue.