From the perspective of result, one cannot argue with this point.  Rewarding a defendant for the death of a victim makes for a very poor incentive not to kill.  Clearly, the law should not provide incentives to kill victims rather than allow them to live.

But the good end result in one case often produces questionable law in others.  First, the Nieves-Andino rationale presumes the defendant’s guilt.  After all, it’s only a good result if the defendant is in fact guilty.  If he’s innocent, then it’s a very bad result. 

Consider a few facts changes:  The victim hated the defendant and would do anything to “get” him.  When the police inquire, the victim uses the opportunity to name his arch enemy. Bingo, intentional false ID.  But since this “excited utterance” of a now deceased victim come in without any Crawford issue, there’s no way for the defendant to challenge the victim’s deliberate misidentification.  Could this happen?

Consider further that the Court, in deciding to hold that this statement was “non-testimonial” and thus outside of the purview of the Confrontation Clause and Crawford, was compelled to attribute “primary motivation” to the cop in asking the question “who did this?”  According to the Court,

Given the speed and sequence of events, the officer could not have been certain that the assailant posed no further danger to Millares or to the onlookers. His brief solicitation of pedigree information and information about the attacker’s identity was part of Officer Doyle’s reasonable efforts to assess what had happened to cause Millares’s injuries and whether there was any continuing danger to the others in the vicinity. In other words, the primary purpose of his inquiry was to find out the nature of the attack, “so that he could decide what, if any, action was necessary to prevent further harm.”

This is a prime example of a court indulging in sheer speculation to attribute a facile motive to a police officer, and thus circumvent the law.  Does anyone really believe that the cop needed the identity of the killer in order to determine whether there was still a threat?  Puhlease.  He wanted to ID the perp. Nothing wrong with that, but let’s call it what it is.  Of course, then it is clearly testimonial and hence subject to Crawford.

Now that the court has stepped onto the slippery slope where victim responses to police inquiries identifying the attacker fall into the excited utterance exception, a harsh blow has been dealt to Crawford.  We can litigate excited utterances, but it’s a very subjective determination.  The line drawn in the sand has become very wiggly.

But, you say, here the victim died.  In the next case, where the victim will live because of this decision, the prosecution will have its witness and you will have your chance to cross.  So what’s your beef?  There are many reasons why a witness never makes it to the stand; whether it’s disappearance, subsequent unrelated death or unavailability for a plethora of reasons.  True, it is more likely that the witness will testify, but there will be cases where he or she won’t, and defendant’s will be constrained to challenge the hearsay of a cop because of this case.  While these cases may not number in the thousands, they still matter, particularly if you happen to be the defendant or a loved one.  Also if you happen to be the defendant’s lawyer.

Crawford, like Booker and others, had the potential to bring about monumental change in the fairness and propriety of criminal trials.  It held such promise.  But like Booker, Crawford is being whittled away, chip by chip, until we end up right back where we started.  Rather than offer a challenge to the prosecution to convict based on good evidence after providing a defendant with the rights intended to be given by the Constitution, it offers a challenge to courts to come up with new, imaginative ways to circumvent a defendant’s right.  It’s a shame to watch this happen, and it happens all the time.