Crawford is being felt in the Circuits. The Second Circuit held on Tuesday that co-conspirator statements are inadmissible against a criminal defendant unless the defendant had a prior opportunity to cross-examine the speaker. United States v. Bruno, 2004 WL 2039421 (2d Cir., Sept. 14, 2004). Judge Miner, for Judges Katzmann and Tsoucalas, wrote:
We turn first to whether the District Court’s admission of two hearsay statements — a plea allocution and [ ] grand jury testimony — violated the Confrontation Clause of the Sixth Amendment in light of the Supreme Court’s recent decision in Crawford v. Washington. There, the Court held that the Confrontation Clause was violated when the state trial court admitted a statement made by the defendant’s wife to the police, notwithstanding the wife’s unavailability to testify at trial due to the invocation of the marital privilege. Specifically, the Court held that testimonial statements of witnesses absent from trial are to be admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine. In reaching this conclusion, the Court identified earlier lower federal court cases where testimonial statements had been admitted in contravention of its interpretation of the Confrontation Clause, including cases where a plea allocution showed the existence of a conspiracy, and cases involving the admission of grand jury testimony.
[T]he District Court plainly erred in admitting into evidence testimonial hearsay statements that the Crawford Court expressly stated are not admissible under the Confrontation Clause. We hasten to observe that the able District Court made its rulings before the Supreme Court issued Crawford, and that only a soothsayer could have known with any certainty that the Court would change the legal landscape. That these statements were clearly admissible under our interpretation of the Confrontation Clause at the time they were admitted is of no moment, however, given that an error is plain if it is clear or obvious at the time of appellate consideration.
Id. at *7-9.