Petitioners Brief — Crawford v. Washington
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Sips CTT |
ot 2 4 2003
No. 02-9410 | hSEe
In THE
Supreme Court of the United States
MICHAEL D. CRAWFORD
Petitioner,
V.
WASHINGTON,
Respondent.
On Wnit of Certiorari
to the Supreme Court of Washington
BRIEF FOR PETITIONER
BRUCE E. H. JOHNSON
JEFFREY L. FISHER
Counsel of Record
SCOTT CARTER-ELDRED
DAVIS WRIGHT TREMAINE LLP
2600 Century Square
1501 Fourth Avenue
Seattle, WA 98101-1688
(206) 622-3150
,
QUESTIONS PRESENTED
I. Whether the Confrontation Clause of the Sixth
Amendment permits the admission against a criminal defendant
of a custodial statement by a potential accomplice on the ground
that parts of the statement “interlock” with the defendant’s
custodial statement.
II. Whether this Court should reevaluate the Confrontation
Clause framework established in Ohio v. Roberts, 448 U.S. 56
(1980), and hold that the Clause unequivocally prohibits the
admission of out-of-court statements insofar as they are
contained in “testimonial” materials, such as tape-recorded
custodial statements.
il
TABLE OF CONTENTS
QUESTIONS PRESENTED ...........::ssssssessesssesersesseseenersenennnnennenny i
TABLE OF AUTHORITIEG..........cc::csssssseseesseseseennenesensseeseenens iv
BRIEF FOR PETITIONER. .........:::cssssssesseeeseseeseneseessesensnnnsnennes |
OPINIONS BELOW. ..........::scssssssssssssseseseesesssesesnssensansanensneseseees l
JURISDICTION..........:.scccsssessssssssssseereessensencessessseesensneesnensnnsneeens l
CONSTITUTIONAL PROVISION INVOLVED ..........00002+00000 l
STATEMENT OF THE CASE .........:ccsssssessssssensenseesereseesenesenenees l
SUMMARY OF ARGUMENT.........:::cssssssessenseeseesenenenssenenenees 8
ARGUMENT. .......cscsccsoscsscsssesssssosssscnssesssnrsnssessonssssssssnssssssnseonees 11
I. The Admission of Sylvia’s Recorded Custodial
Examination Violated the Confrontation Clause Because
It Constituted Incriminating “Testimony” That Was Not
Subjected To Cross-Examination. ...........:sssssssssssesnseneeenenees 11
A. The Confrontation Clause Traditionally Prohibits the
Introduction of Ex Parte Testimonial Statements,
Including Accomplices’ Custodial Confessions,
Against Criminal Defendant. ..............:sssssesssereeerenens 11
1. The Development of the Right to Confrontation
at Common Law..........sssecccssserssrersssseeeeeeeesseenseees 12
2. The Confrontation Clause’s Codification of the
Common Law Rule. ...........:sssssssesssseseeeeeneeeneesenenees 16
3. This Court’s Modern Jurisprudence..............++0++ 22
B. This Traditional Construction of the Confrontation
Clause Dictates that Sylvia’s Custodial Examination
Was Inadmissible Against Petitioner, Regardless of
Whether It Appears To Be “Reliable.”.............scsssseeeees 23
ili
C. To the Extent that Reasoning in Ohio v. Roberts and
Subsequent Cases Permits the Admission of
Incriminating Testimonial Statements When Courts
Deem Them Reliable, That Methodology Should Be
1. The Roberts Framework Is at Odds With the
History, Purpose, Text, and Structure of the
cians 28
2. The Roberts Framework Breeds Inconsistent
and Anomalous Results..................cccccccccsceeceeeeeeeees 38
II. Even If the Perceived Reliability of Sylvia’s Statement
Did Affect Its Admissibility, Its Introduction Still
Violated the Confrontation Clause Because Its
Interlocking Nature Does Not Establish That It Has
“Particularized Guarantees of Trustworthiness.” ................. 42
A. Whether an Accomplice’s Custodial Statement
Interlocks with the Defendant’s Is Irrelevant to the
Particularized Guarantees Inquiry. .................c0+s0s0esee0e 43
B. Even if Evidence of Interlock Were Relevant to the
Particularized Guarantees Inquiry, the Totality of the
Circumstances Surrounding Sylvia’s Statement Still
Demonstrate That It Is Not Sufficiently Reliable To
Satisfy the Confrontation Clause.................c.sscsesessereees 46
ee TD ctatececsinncesientmnsientnncdenantenansineninescenesteesnimentenent 50
iv
TABLE OF AUTHORITIES
Cases:
Anthony v. State, 19 Tenn. (Meigs) 265 (1838) ...........sseseees 19
Benson v. United States, 146 U.S. 325 (1892) ........ccccscceeseeereeee 31
Berger v. California, 393 U.S. 314 (1969)........ccecsesereereeenenees 22
Bourjaily v. United States, 483 U.S. 171 (1987).........ccceeeeserees 23
Brookhart v. Janis, 384 U.S. 1 (1966)........cccccsccseeeseeeeeeeeees 22, 25
Bruton v. United States, 391 U.S. 123 (1968)......... 22, 24, 45, 46
California v. Green, 399 U.S. 149 (1970)..........00++ 13, 14, 23, 34
Campbell v. State, 11 Ga. 353 (1852) .....cecceseesereeseeessenennenenees 19
Case of Thomas Tong, 84 Eng. Rep. 1061 (1662). ............... 9,14
Collins v. Youngblood, 497 U.S. 37 (1990)........-cesesseeeeeeenenees 27
Coy v. Towa, 487 U.S. 1012 (1988).......ccccccseeceeneeereeeeeneneenennes 12 |
Cruz v. New York, 481 U.S. 186 (1987)........0-000+ 22, 43, 44, 47
Douglas v. Alabama, 380 U.S. 415 (1965) ......--s+00s000 22, 24, 25
Dowdell v. United States, 221 U.S. 325 (1911) ......ccceeeeeeeee 21, 32
Dutton v. Evans, 400 U.S. 74 (1970)......cccccciecceeeesseessersereeeennees 23
Eade v. Lingood, 1 Atk. 203 (1747)......:ccsssesseesereeeeees 14, 15, 16
Gabow v. Commonwealth, 34 S.W.3d 63 (Ky. 2000)..........20++ 40
Garrison v. State, 726 So. 2d 1144 (Miss. 1998)... 41
Gray v. Maryland, 523 U.S. 185 (1998) .......cccsesseeserseereeeenenes 22
Holiday v. State, 14 S.W.3d 784 (Tex. App. 2000)...........-s+e+ 39
Idaho v. Wright, 497 U.S. 805 (1990)........ccesseeeerseeennes passim
Johnston v. State, 10 Tenn. (2 Yer.) 58 (1821) .......ccccceseeeeeeeeees 20
Kirby v. United States, 174 U.S. 47 (1899).....c..cccceseeseeseeneeneees 21
Kosydar v. National Cash Register Co., 417 U.S. 62 (1974)....37
ee
weer mer
Vv
Kyllo v. United States, 533 U.S. 27 (2001) ........cccccecseeseeseeeeeeees 35
Lee v. Illinois, 476 U.S. 530 (1986) .........cc.ccccceceseeeeeeseeeees passim
Lilly v. Commonwealth, 499 §.E.2d 522 (Va. 1998)........cc000000. 44
Lilly v. Virginia, 527 U.S. 116 (1999).........cccccccceceeseeseeeees passim
Mancusi v. Stubbs, 408 U.S. 204 (1972) ........cccccccceeseeeeeeeees 23, 33
Manson v. Brathwaite, 432 U.S. 98 (1977).......c..cccccecssesseeeseeeee 34
Marks v. United States, 430 U.S. 188 (1977).......ccccccccsceeseeeeeees 44
Maryland v. Craig, 497 U.S. 836 (1990) ........c..ccccscseceeseeees 30, 36
Mattox v. United States, 156 U.S. 237 (1895)...16, 20, 21, 32, 33
Motes v. United States, 178 U.S. 458 (1900) ...........ccccccee0es 21, 42
Nowlin v. Commonwealth, 579 $.E.2d 367 (Va. App. 2003)....39
Ohio v. Roberts, 448 U.S. 56 (1980) ..........c.cccesceseeseeeeeeeees passim
Oregon v. Elstad, 470 U.S. 298 (1985) ........:ccscseeseeseeseeeseeeeeeses 37
People v. Campbell, 721 N.E.2d at 1225 (Ill. App. 1999)......... 39
People v. Farrell, 34 P.3d 401 (Colo. 2001)..........cccccesseseeseeeees 39
People v. Jordan, 2002 WL 50594 (Cal. App. 2002) ......... 38, 39
People v. Schutte, 613 N.W.2d 370 (Mich. 2000).............000000+- 39
People v. Thomas, 730 N.E.2d 618 (Ill. App. 2000)................- 39
Pointer v. Texas, 380 U.S. 400 (1965) ......0...cccccceeeeeeeeseeeeees 22, 42
Regina v. Scaife, 2 Den. C.C. 281 (1851) .........cccccsceeseesseeeeeeeees 21
Rex v. Paine, 90 Eng. Rep. 1062 (K.B. 1696).............cccccccceeeees 14
Roberts v. Russell, 392 U.S. 293 (1968) ..........ccccsssesseeseeseeereees 22
Salinger v. United Staies, 272 U.S. 542 (1926) ......cccccccseseeseeees 12
Sandin v. Conner, 515 U.S. 472 (1995) ......ccccccccseeseeseeeesereeeenees 27
State v. Bintz, 650 N.W.2d 913 (Wis. App.), rev. denied,
I 39, 42
vi
State v. Campbell, 30 S.C.L. (1 Rich.) 124,
ee 20, 32
State v. Franco, 950 P.2d 348 (Or. App. 1999) .........ccssceeereees 38
State v. Marshall, 737 N.E.2d 1005 (Ohio App. 2000).......38, 41
State v. Murillo, 623 N.W.2d 187 (Wis. App. 2001) .2.........000+: 41
State v. Webb, 2 N.C. (1 Hayw.) 103 (1794).........ccccecseeeeees 19, 20
Stevens v. People, 29 P.3d 305 (Colo. 2001),
cert. denied, 535 U.S. 975 (2002) ........c.sssssseserreseeeesees 39, 40
Sugden v. St. Leonards, 1 P.D. 154 (1876) ..........cceeseeeeeeeeeeeees 45
Summons v. Ohio, 5 Ohio St. 325 (1856)..........ccsccceeeeeeeeees 19, 29
Taylor v. Commonwealth, 63 S.W.3d 151 (Ky. 2001)...........++ 41
Taylor v. Commonwealth, 821 S.W.2d 72 (Ky. 1990).........0:++. 41
Trial of Sir Walter Raleigh, 2 How. St. Tr. 1 (1809) ....13, 14, 40
United States v. Berrio-Londono, 946 F.2d 158
a 36
United States v. Brooks, 82 F.3d 50 (2d. Cir. 1996) ...c.csve-« 36
United States v. Burr, 25 F. Cas. 187 (C.C. Va. 1807)
i TEE SSL LTE AT. 9, 18, 19
United States v. Cardillo, 316 F.2d 606 (2d Cir. 1963) ......... 36
United States v. Castelan, 219 F.3d 690 (7th Cir. 2000) .......... 38
United States v. Dolah, 245 F.3d 98 (2d Cir. 2001)........... 40, 41
United States v. Ginn, 455 F.2d 980 (Sth Cir. 1972)....ccsvs-00-« 36
United States v. Humphrey, 696 F.2d 72 (8th Cir. 1982)..........36
United States v. Inadi, 475 U.S. 387 ccccccccvsssssssssseee 16, 23, 26, 34
United States v. Kozminski, 487 U.S. 931 (1988) ..ccevcscssssssss0ee 37
United States v. LaRiche, 549 F.2d 1088 (6th Cir. 1977) .........36
United States v. Lord, 711 F.2d 887 (9th Cir. 1983)..........00000 36
vii
United States v. Newman, 490 F.2d 139 (3d Cir. 1974)............ 36
United States v. Norman, 402 F.2d 73 (9th Cir. 1968).............. 36
United States v. Ordonez, 737 F.2d 793 (9th Cir. 1984)........... 33
United States v. Papajohn, 212 F.3d 1112
ES GHEE ernnsenennsntccnnivennnemnmesnenenmscnccnmnnienel 40, 41
United States v. Photogrammetric Data Services, Inc.,
259 F.3d 229 (4th Cir. 2001), cert. denied,
ee es et hiatrtistrinsensionsteincentinniinninninimenmeinitaneisininiia 39
United States v. Reid, 53 U.S. (12 How.) 361 (1851)............... 12
United States v. Shoupe, 548 F.2d 636 (6th Cir. 1977)............. 34
United States v. Smith, 342 F.2d 525 (4th Cir. 1965)................ 36
United States v. Thomas, 2002 WL 429383 (4th Cir.),
cert. denied, 535 U.S. 1066 (2002) ..........:cccccceseeeeeseeeees 40, 41
United States v. Zapeta, 871 F.2d 616 (7th Cir. 1989).............. 36
White v. Illinois, 502 U.S. 346 (1992)......cceseeeseeseseereneeees passim
Federal Constitutional Provisions:
ry CEs SEEDY Saks Ut GIA GUS SP ncesocnecineieesindbsinisieenencntininsatenmeninmnennins 32
U.S. Const. Art. III, § 3, cl. 1 (Treason Clause)................:c0000++ 37
a ER, Wes Gib B crrenemevencssennesenseenmseensncsnncensatlatnnmnennes 32
ee GE, BG cerenerssnnsccnpwesmenemninns 32, 35
U.S. Const. amend. V (Self Incrimination Clause) ................... 37
U.S. Const. amend. VI (Confrontation Clause)................. passim
U.S. Const amend. XIV, § 3........ sennnuneneinniiiunmioemmenenaunitel 32
State Constitutional Provisions:
Del. Decl. of Rights § 14 (17776) ....<cccoscococccsscccsccscosscscsscessessosees 19
Md. Decl. of Rights Art. XIX (1776) ...........ccccccccssesscesseeeeeereeee LD
Viii
Mass Const. Art. XII (1780).......ccccssscssesssserssenseersseenseeeseneenenes 19
N.C. Decl. of Rights Art. VII (1776).........sssesesenenenserennsenes 19
N.H. Bill of Rights Art. XV (1784).......ccscsseesesereeenesessnsennnenes 19
Pa. Const. § A(LX) (1776) ......ccssccsssseressereeseeeneensnesnennsnenensensanees 19
Va. Bill of Rights § 8 (1776)........::ccssessseesessersreeseesnenesensnenennenes 19
Vt. Decl. of Rights Art. X (1776).......sscssesseeeseeneeererenensenenenes 19
Legal Filings:
Brief for United States, United States v. Inadi,
475 U.S. 387 (1986) (No. 84-1580) ......cccecseereereeeeeenees 28, 46
Brief for United States, White v. Illinois, 502 U.S. 346
(1992) (NO. 90-6113) .....cccccsesesereerereseneesensnensenenenesnsneneseenees 28
Other Authorities: a
Amar, Akhil Reed, The Constitution and Criminal
Procedure (1997) .........sscsssssssssssssssseeerseseneseeees 26, 29, 32, 37
Berger, Margaret A., The Deconstitutionalization of
the Confrontation Clause: A Proposal for a
Prosecutorial Restraint Model, 76 Minn. L.
Rev. S59 (1992) ..cscsroscssorerscrserserseressscsecsssoesoeees 26, 29, 32, 42
Blackstone, William, Commentaries on the Laws
Of England (1768).........ssssssssseseeseneseneeeseneneenes 16, 30, 31, 49
Dickinson, Joshua C., The Confrontation Clause and
the Hearsay Rule: The Current State of a Failed
Marriage in Need of a Quick Divorce,
33 Creighton L. Rev. 763 (2000) .........ccsesessessenenseeeeenenees 26
Fortescue, John, On the Laws and Governance of
England (1997).........:s0sssssssrerssrseesessssesssssssssssssesenssssnsees 12
Friedman, Richard D., Confrontation: The Search for
Basic Principles, 86 Geo. L. Rev. 1011 (1998) .........+0s0 26
ix
Friedman, Richard D, & McCormack, Bridget, Dial-Jn
Testimony, 150 U. Pa. L. Rev. 1171 (2002)............ 28, 29, 38
Gardiner, Samuel R., History of England (1965)................ 14, 40
Hale, Matthew, The History of the Common Law of
England (Charles M. Gray ed. 1713) .......cccccccsssseeseeeeseeseeees 15
Heller, Francis H., The Sixth Amendment (1951).............000000 17
Herrmann, Frank R. & Speer, Brownlow M., Facing the
Accuser: Ancient and Medieval Precursors of the
Confrontation Clause, 34 Va. J. Int’1 L. 481 (1994)........... 12
Holdsworth, W.S., History of the English Law (1926)............. 13
Jonakait, Randolph N., The Origins of the Confrontation
Clause: An Alternative History, 27 Rutgers L.J. 77
[EEE csrereeseesersnsmennencomiecsneneenienemenmmmannmgueneansmntepenmedeensiate 29
Journals of the American Congress, 1774-1788 (1823)............ 17
Kirst, Roger W., Appellate Court Answers to the
Confrontation Questions in Lilly v. Virginia,
a ee ee NS Ge et nicicsctinsicceustnibentensinicvitinaniceasasanatinmennd 41
Lee, Richard Henry, Letter IV by The Federal Farmer
(Oct. 15, 1787), reprinted in 1 Bernard Schwartz, The
Bill of Rights: A Documentary History (Richard L.
IE Gee TEU seceensrasnsnesunneseensenitienmnnnnnssnnmssianteianscenanensiimses 17
Legal Papers of John Adams (Wroth & Zobel eds., 1965)....... 17
Pollitt, Daniel H., The Right of Confrontation: Its History
and Modern Dress, 8 J. Pub. L. 381 (1959) .......scsceseseeseees 14
Smith, Christopher, Biography of Sir Walter Raleigh, in
Britannia Biographies, pt. 15 (1999)
<http://www.britannia.com/bios/raleigh/out.htmI>............. 14
Starkie, Thomas, A Practical Treatise of the Law of
EE EUIED TIIITED cxcttcihssitintecsitieteinensecncnnensnentenmsccsncenainees 32
Stephen, James, A History of the Criminal Law of
SETI hiicthiesctenitatitietbieieateneniamenaiasiatinmaniaaiie 13, 14, 31, 40
xX
Story, Joseph, Commentaries on the Constitution
of the United States (1833).........:cssccsseeseeeeeereeeeeeeenenteeees 12
The Summa Parisiensis on the Decretum Gratiani
(Terrence P. McLaughlin ed. 1952) ........s.sssesesesessreeeseenenees 12
Webster, Noah, An American Dictionary of the English
Language (1828)........sssssssessessesnsereeenensssnscnsenennsensnseensnnnns
Wigmore on Evidence (Chadbourn rev. ee 16, 45, 46
BRIEF FOR PETITIONER
OPINIONS BELOW
The opinion of the Washington Supreme Court (J.A. 2-19)
is published at 147 Wn.2d 424, 54 P.3d 656 (Wash. 2002).
The opinion of the Washington Court of Appeals (J.A. 20-37)
was unpublished. The relevant order of the Superior Court
(J.A. 38-77) is unpublished.
JURISDICTION
The Washington Supreme Court issued its decision in this
case on September 26, 2002, and denied Petitioner’s timely
petition for rehearing on December 12, 2002 (J.A. 78). This
Court has jurisdiction under 28 U.S.C. § 1257(a).
CONSTITUTIONAL PROVISION INVOLVED
The Sixth Amendment to the United States Constitution
provides in relevant part: “In all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the
witnesses against him.”
STATEMENT OF THE CASE
This case presents this Court with an opportunity to clarify
the operation of the Confrontation Clause and to refasten this
critical provision of criminal procedure to its historical and
textual underpinnings. At issue is whether the court in
Petitioner’s criminal trial erred in allowing the State to
introduce a tape recording and accompanying transcript of the
police’s custodial examination of his potential accomplice, who
was unavailable to testify at trial. During the examination, the
suspected accomplice denied any significant involvement in
the alleged felony and directly implicated Petitioner in the
incident. The Washington Court of Appeals held that the
admission of this custodial statement violated the
Confrontation Clause because several circumstances
surrounding its making indicated that it was unreliable. But the
Washington Supreme Court reversed, ruling that the potential
accomplice’s statement was sufficiently reliable for
confrontation purposes, irrespective of the circumstances
surrounding its making, because its content “interlocked” with
2
Petitioner’s own custodial statement. This “interlocking”
rationale requires this Court to evaluate the nature and
propriety of the reliability-based approach that has framed its
recent applications of the Confrontation Clause.
1. On August 5, 1999, Petitioner Michael D. Crawford
and his wife Sylvia went to the apartment of Kenneth Lee. An
argument developed and a violent altercation suddenly
followed. During the scuffle, Petitioner received a cut on his
hand that required twelve stitches to close, Sylvia got blood on
her sweater, and Petitioner stabbed Lee in the stomach,
seriously injuring him.
That night, the police arrested Petitioner and Sylvia and
interrogated them in separate rooms at the Olympia Police
Department. At two different points of each person’s
interrogation, the police tape recorded what the State calls
“statements” from the suspects. In each of these “statements,”
the Crawfords provide a series of responses to police officers’
specific questions, much as a party would at a deposition.
During his first statement, Petitioner waived his Miranda rights
and said that he and Sylvia had run into Lee earlier in the day
in downtown Olympia and that Lee had told them that they
could come over to his apartment later to collect some money
that he owed them. Petitioner told the police that after they
arrived at the apartment, he left to go to the store. He said that
he returned to the apartment to find Lee making sexual
advances toward Sylvia. A tussle suddenly resulted during
which Lee reached for something, Petitioner’s hand got sliced
open, and Petitioner stabbed Lee. J.A. 113-19.
At the outset of Sylvia’s first interrogation, the officer also
read Sylvia her Miranda rights. She asked whether she would
be “let go until there was a lawyer present” if she invoked her
right to counsel. J.A. 80. The officer responded that while a
lawyer could be appointed to represent her, “I don’t know if
you'll be let go or detained more at this point or not. It
depends on how the investigation continues. Ok, so I can’t
answer if you’ll be detained longer or not. At this point this is
under investigation and that’s where we’re at, at this point.”
Pe i hh ah a ae
+o RRA
3
J.A. 81. Sylvia then waived her rights. Once questioning
began, Sylvia’s responses were similar to Petitioner’s, but she
said that Lee invited Petitioner and her over to his house “to go
drinking.” J.A. 86. She also acknowledged that she had been
“pretty intoxicated” during the day. J.A. 88. Finally, she said
that she was behind a wall during the stabbing and, therefore,
did not see what happened. J.A. 93.
A few hours later, from about 11:00 pm until 1:00 am,
Petitioner and Sylvia each responded to additional police
questioning on tape. Both said that they went to Lee’s
apartment to demand that he pay up on a debt, and (in a change
from their first statements) that Lee had actually sexually
assaulted Sylvia several weeks ago, not earlier that day. The
second statements, however, differed from each other
somewhat concerning the actual stabbing. | When the
interrogating officer asked Petitioner, “Did you ever see
anything in [Lee’s] hands?,” Petitioner responded that “I
coulda swore I seen him goin’ for somethin’ before, right
before everything happened. . . . I think that he pulled
somethin’ out and I grabbed for it and that’s how I got cut...
but I’m not positive.” J.A. 155 (second ellipsis in original).
When the officer asked Sylvia, “did [Lee] do anything to
fight back from this assault?,” the following colloquy took
place, as transcribed by the Police Department:
A: (pausing) I know he reached into his pocket . . . or
somethin’ . . . I don’t know what
Q: after he was stabbed
A: he saw Michael coming up. He lifted his hand...
his chest open, he might have went to go strike his
hand out or something and then (inaudible)
Q: okay, you, you gotta speak up
A: okay, he lifted his hand over his head maybe to
strike Michael’s hand down or something and then he
put his hands in his . . . put his right hand in his right
pocket . . . took a step back . . . Michael proceeded to
stab him . . . then his hands were like . . . how do you
explain this . . . open arms . . . with his hands open as
4
he fell down .. . and we ran (describing subject
holding hands open, palms toward assailant)
Q: okay, when he’s standing there with his open
hands you’re talking about [Lee], correct
A: yeah, after, after the fact, yes
Q: did you see anything in his hands at that point
A: (pausing) um um (no)
J.A. 137 (ellipses and parentheticals in original). Sylvia also
told the officers that Petitioner had been “infuriated,”
“enraged,” and “past tipsy,” and she stated that Petitioner had
said before the incident that Lee “deserves an ass whoopin’.”
J.A. 131-32, 135. Near the end of her examination, Sylvia
denied any involvement in the actual stabbing. “I did not stab
[Lee],” she said, “I saw Michael stab him.” J.A. 139, 134. She
quickly added, though, that during the scuffle, “I shut my eyes
and I didn’t really watch. I was like in shock.” J.A. 134.
2. The State filed an information against Petitioner
charging him with attempted murder in the first degree with a
deadly weapon and assault in the first degree with a deadly
weapon. Sylvia was a “potential accomplice” because, even
according to her own admissions, she “showed [Petitioner]
where to find Lee[,] was present through the duration of the
violent encounter, . . . walked away from the stabbing with
[Petitioner] and did not turn to the police when she had the
opportunity.” J.A. 14. The State nevertheless declined to
charge her at that time with any crime.
The key issue at Petitioner’s trial was whether he acted in
self-defense. Petitioner took the stand and testified that after
asking Lee whether he had tried to rape Sylvia, Lee rushed at
him. Petitioner thought that Lee had a weapon. So, in
Petitioner’s words, “I thought that I was going to get stabbed,
and I just pulled my knife and figured I better get him first.”
Report of Proceedings at 276. A forensic scientist testified that
he could not determine whether Lee was moving forward or
backward when he got stabbed, but that it appeared that
Crawford had been in a blocking motion (a defensive posture)
during the altercation.
PT
i il eh. ee
5
Sylvia did not testify. Rather, the State and Petitioner
stipulated that Washington’s marital privilege statute rendered
her unavailable to do so because she and Petitioner wanted to
invoke the privilege. J.A. 25, 39-43.' The State, however,
sought to offer its tape recording and accompanying transcript
of Sylvia’s second custodial statement as evidence that Lee did
not reach for a weapon until after Petitioner stabbed him.
Petitioner objected that this admitting this material would
violate the Confrontation Clause. J.A. 41-42. The State
acknowledged that the Clause was applicable under these
circumstances but contended that Sylvia’s statement was
reliable enough to be admissible. J.A. 44-46.
The trial court, after discussing this Court’s plurality
decision in Lilly v. Virginia, 527 U.S. 116 (1999) — which
elaborates on the reliability-based Confrontation Clause
framework established in Ohio v. Roberts, 448 U.S. 56 (1980)
— sided with the State and held that the statement was
admissible. The court stated that, in light of other evidence in
the case, Sylvia’s statement did not appear to “shift blame,
exculpate herself and inculpate [Petitioner].” J.A. 61. The
court further reasoned:
So when I take the statement of Sylvia Crawford in
the context of the statement of Defendant Crawford, I
do not find that it is unreliable and untrustworthy. It’s
not dissimilar to the defendant’s own statement.
When I take it in a vacuum, not measured against any
other evidence known at the time or understood at the
time, I think it’s a closer call... .
. . » I am concluding, given my analysis of the
statements and the standard set forth in Lilly vs.
Virginia, that the type of potential accomplice
Statement against penal interest made by Sylvia
' The martial privilege statute was not the only law standing in the way of
Sylvia testifying. Even if Petitioner had tried to force Sylvia to testify, she
still could have invoked her Fifth Amendment right to remain silent to
avoid taking the witness stand. At the time of Petitioner’s trial, the State
was considering filing charges against Sylvia for her role in the assault, and
it did so shortly after Petitioner’s trial concluded.
6
Crawford is sufficiently reliable concerning what
occurred at the time of the stabbing and with respect
to who stabbed Mr. Lee that I would not preclude the
State from attempting to admit it in its case in chief.
J.A. 61-62.
Later in the proceedings, the State played the tape of
Sylvia’s statement and introduced the accompanying transcript.
And at closing argument, the prosecution stated that “[tJhe
defendant’s own wife gives damning evidence in this case. . . .
She describes an intentional stabbing of Mr. Lee and
completely refutes [Petitioner’s] claim of self-defense.” Report
of Proceedings at 468.
The jury found Petitioner not guilty of the attempted
murder charge but guilty of the assault charge. On Novem-
ber 19, 1999, the court sentenced him to 174 months in prison.
On November 24, 1999, the State filed (and later
amended) an information against Sylvia for her role in the
incident, charging her with rendering criminal assistance in the
first degree and assault in the second degree. Brief in Opp. at
1. Sylvia pleaded guilty on January 18, 2000 to the criminal
assistance charge and to assault in the third degree. Jd. She
was sentenced to nine months in county jail. /d. App. F at 5.
3. On appeal, the Washington Court of Appeals reversed
Petitioner’s conviction on the ground that the admission of
Sylvia’s second statement violated the Confrontation Clause.
It began by noting that this Court’s Roberts framework permits
the introduction of hearsay evidence against criminal
defendants if it “(1) falls within a firmly rooted hearsay
exception or (2) contains ‘particularized guarantees of
trustworthiness.”” J.A. 23 (quoting Roberts, 448 U.S. at 66). It
also stated that although “parts of Sylvia’s second statement,”
the only one offered for the truth of the matter asserted, “were
against her penal interest” (and thus admissible under state
hearsay law) because they “could give rise to accomplice
liability” J.A. 26, the against-penal-interest exception to the
hearsay rule is not a “firmly rooted” one. J.A. 24.
7
The court of appeals then applied a nine-part test “to
determine whether an out-of-court statement satisfies the
reliability prong” of the Roberts framework and held that
Sylvia’s second statement was “plainly untrustworthy,” J.A. ~
33, because: Sylvia had a motive to lie; Sylvia gave two
different versions of her statement within four hours; Sylvia’s
statement was not spontaneous, but rather was given under
mandatory police questioning; the statement described past
events; and “cross-examination could reveal that she lacked
knowledge of what happened” because “Sylvia stated that she
shut her eyes during the stabbing.” J.A. 28-31. The court of
appeals added that although the Washington Supreme Court
had previously held that an accomplice’s confession could be
deemed reliable if it “interlocks” with the defendant’s
confession, “that reasoning does not apply in this case” because
Petitioner’s and Sylvia’s statements “differ regarding whether
Lee was armed when [Petitioner] stabbed him.” J.A. 31-32.
The court of appeals next held that state evidence law
barred the admission of Sylvia’s first statement because, as
evidence of supposed fabrication, “it is relevant only if the
second statement is admitted.” J.A. 25, 33. Lastly, the court of
appeals concluded that the admission of Sylvia’s statements
was not harmless because “Sylvia’s second statement refutes
[Petitioner’s] claim of self-defense” and sends the
“overwhelming message that the jury cannot trust [Petitioner’s
story].” J.A. 33-34.
Chief Judge Armstrong dissented. He agreed with the
majority that the portions of Sylvia’s statement describing
Petitioner’s mental state and his feelings toward Lee were not
against her penal interest, but he asserted that this was harmless
error. J.A. 35 & n.3. The dissent then argued that the portion
of Sylvia’s statement regarding the stabbing was admissible
under both hearsay law and the Confrontation Clause because
it interlocks with Petitioner’s statements. In the dissent’s view,
“even if we read Sylvia’s statement as reporting that Lee
reached for something after the stabbing, the statements are
still the same in one essential fact: neither [Petitioner] nor
Sylvia clearly stated that Lee had a weapon in hand from which
[Petitioner] was simply defending himself. And it is this
omission by both that interlocks the statements and makes
Sylvia’s statement reliable.” J.A. 36-37.
4. The Washington Supreme Court granted the State’s
petition for discretionary review, reversed and reinstated
Petition’s conviction. The Court initially confirmed that Sylvia
was unavailable \o testify as a matter of state law due to the
invocation of the state marital privilege statute but that her
custodial statement was admissible if it satisfied state rules of
evidence and federal confrontation standards. It then held that
Sylvia’s whole second custodial statement — including the
portions saying that Petitioner, not her, had stabbed Lee and
saying that Petitioner had been “infuriated” and had stated that
Lee “deserves an ass whoopin’” — was against her penal inter-
est and thus admissible under state hearsay law. J.A. 14-15.
Turning to the Confrontation Clause, the Court adopted the
reasoning from the dissent below, holding the “admission of
Sylvia’s statement satisfies the requirement of reliability under
the confrontation clause” because “both of the Crawfords’
Statements are ambiguous as to whether Lee ever actually
possessed a weapon.” J.A. 18. The Court deemed it irrelevant
whether the circumstances surrounding Sylvia’s statement also
indicated that it was trustworthy. “[AJn interlocking
confession,” the Court explained, “serve[s] the same purpose as
the nine-factor test in assessing reliability.” J.A. 16.
5. Petitioner moved for rehearing, but the Washington
Supreme Court denied this motion without comment. J.A. 78.
6. This Court granted certiorari. 123 S. Ct. 2275 (2003).
SUMMARY OF ARGUMENT
The Washington Supreme Court erred in holding that the
Confrontation Clause permitted the State to introduce Sylvia’s
custodial examination against Petitioner.
I. The Confrontation Clause prohibits the government
from introducing any ex parte “testimonial” statements, such as
an accomplice’s custodial examinations, against the accused.
1 ETL RT ERR TAO ee PTT BT NE RPE Ho
9
A. The common law right to confrontation, which the
Framers incorporated into Confrontation Clause, solidified in
response to the notorious English prosecutions of Sir Walter
Raleigh and others on the basis of incriminating ex parte
depositions and accomplice confessions. Such ex parte
testimony, scholars such as Hale and Blackstone observed,
tended to produce incomplete, slanted, misleading, and even
inaccurate statements. The resulting likelihood that defendants
might be convicted on this type of faulty evidence was deemed
unacceptable. Accordingly, the rule of confrontation required
that all incriminating testimony be given face-to-face and
subject to cross-examination. If an accomplice confessed and
became unavailable for trial, it was settled that the confession
“cannot be made use of as evidence against any others whom
on his examination he confessed to be in the [crime].” Case of
Thomas Tong, Kelyng J., 17, 18, 84 Eng. Rep. 1061-62 (1662).
American courts consistently have adhered to this tradi-
tional rule. Chief Justice Marshall described the Confrontation
Clause, consistent with other early American decisions, as
commanding that “where A., B., and C. are indicted for
murdering D., . . . the declarations of one of the parties made in
the absence of the others have never been admitted as evidence
against the others.” United States v. Burr, 25 F. Cas. 187, 194
(C.C. Va. 1807) (No. 14,694). This Court, in turn, has found
the Clause violated each time it has addressed a case in which a
nontestifying accomplice’s custodial confession was admitted
against the accused. Indeed, just as at common law, the
landscape of this Court’s jurisprudence dictates that the
government may not convict a defendant through any
testimonial statements — that is, statements given in connection
with its investigation or prosecution — that have not been (or
cannot be) subjected to cross-examination.
B. Applying the testimonial standard to the facts of this
case yields a straightforward result: Petitioner’s confrontation
rights were violated because the State introduced a
nontestifying accomplice’s custodial examination implicating
him in the charged offense. This bright-line rule forbidding the
10 ~
introduction of such statements renders irrelevant the
Washington Supreme Court’s conclusion that Sylvia's
custodial examination was “reliable” because it “interlocked”
with Petitioner’s custodial statement. The right to
confrontation is a categorical requirement that the government
prove its case through live testimony that is subject to cross-
examination, and the State did not do so here.
C. To the extent that the framework established in Ohio v.
Roberts, 448 U.S. 56 (1980) — which suggests that testimonial
statements that have not been subjected to cross-examuination
are admissible if courts deem them reliable — dictates a
contrary result, that framework should be abandoned. The
framework contravenes the history, purpose, text, and structure
of the Confrontation Clause — each of which conceptualizes
confrontation as a procedural rule to be enforced even when
adverse ex parte testimony appears trustworthy. The Clause is
not intended, as Roberts would have it, to be a case-by-case
measuring stick supervising the reliability of all incriminating
hearsay evidence.
The Roberts framework also falters in practice. It breeds
inconsistent and confusing results in an area in which certainty
and predictability are vital. And it allows courts to invoke
reasoning strikingly reminiscent of Raleigh’s judges in order to
admit incriminating statements that lie at the heart of the evil to
which the Confrontation Clause is directed. In all events, the
time has come to restore the Clause to its traditional, pro-
cedural role of requiring that testimonial statements — and only
testimonia! statements — be subjected to cross-examination.
II. Even if this Court applies the Roberts framework here,
it still should reject the Washington Supreme Court’s holding
that Sylvia’s examination is reliable, and hence admissible,
because it “interlocks” with Petitioner’s custodial statement.
A. Evidence that an accomplice’s custodial statement
interlocks with the defendant’s is irrelevant to whether it is
reliable — or, as Roberts puts it more specifically, whether it
contains “particularized guarantees of trustworthiness.” 448
U.S. at 66 In Idaho v. Wright, 497 U.S. 805 (1990), this Court
;
‘
'
t
:
'
11
held that the particularized guarantees inquiry is limited to
those circumstances that surround the making of the statement
and that potentially make it inherently worthy of belief. The
prosecution thus may not “bootstrap” on other evidence, such
as the defendant’s prior statements, to make a nontestifying
accomplice’s custodial statement appear more reliable.
B. Even if the interlocking nature of Sylvia’s statement
were relevant to the particularized guarantees inquiry, “the
totality of the circumstances” surrounding its making, Wright,
497 U.S. at 820, still make it clear that the statement is not
reliable. Sylvia’s statement was made to prosecutorial
authorities while in custody for suspected involvement in a
felony. After the police told her that it “depend{ed] how the
investigation continue[d]” as to whether she would be
“detained more at this point or not,” J.A. 81, she responded to
the officers’ leading questions by placing responsibility for the
alleged assault on Petitioner’s shoulders. What is more, Sylvia
acknowledged that she had been “pretty intoxicated” and “like
in shock” during the altercation, J.A. 88, 134, which would
have impaired her perceptions. She even stated that she did not
really see the critical events. Finally, Sylvia offered two
inconsistent stories during a four-hour span, and her custodial
statement interlocks with Petitioner’s merely in the sense that
it, like his, is ambiguous as to whether the alleged victim
instigated the incident by attacking Petitioner with a weapon.
ARGUMENT
I. The Admission of Sylvia’s Recorded Custodial
Examination Violated the Confrontation Clause
Because It Constituted Incriminating “Testimony”
That Was Not Subjected To Cross-Examination.
A. The Confrontation Clause Traditionally Prohibits
the Introduction of Ex Parte Testimonial
Statements, Including Accomplices’ Custodial
Confessions, Against Criminal Defendants.
This Court repeatedly has noted that “[t]he right to
confrontation did not originate with the Sixth Amendment, but
12
was a common-law right,” Salinger v. United States, 272 U.S.
542, 548 (1926), “which had been previously adopted in the
several states.” United States v. Reid, 53 U.S. (12 How.) 361,
364 (1851); see also Lilly v. Virginia, 527 U.S. 116, 141
(Breyer, J., concurring); 3 Joseph Story, Commentaries on the
Constitution of the United States 662 (1833) (Sixth
Amendment “follow[ed] out the established course of the
common law in all trials for crimes,” including right to
confrontation). An examination of (1) this common law right
to confrontation, (2) the Framers’ understanding of that right,
and (3) this Court’s applications of it demonstrates that the
Confrontation Clause prohibits the admission of all ex parte
testimonial statements, including accomplices’ custodial
confessions, against criminal defendants.
1. The Development of the Right to Confront-
ation at Common Law.
The right to confrontation has “a lineage that traces back
to the beginnings of Western legal culture.” Coy v. Jowa, 487
U.S. 1012, 1015 (1988). The ancient Hebrews and the Romans
required accusing witnesses to give their testimony in front of
the defendant. See id.; Deut. 19:15-18; Frank R. Herrmann &
Brownlow M. Speer, Facing the Accuser: Ancient and
Medieval Precursors of the Confrontation Clause, 34 Va. J.
Int’] L. 481, 485-92 (1994) (recounting several examples in
early Roman law). A twelfth-century treatise on ecclesiastical
law in Europe likewise provided that “[iJin civil cases absent
persons present testimony . . . when they cannot appear... .
But in criminal cases absent persons never give testimony,
except against the contumacious when the case has already
commenced.” /d. at 513 (translating Summa “Magister
Gratianus in hoc opera” on C.3 q.9 (c. 1160 or 1170), in The
Summa Parisiensis on the Decretum Gratiani 123 (Terrence P.
McLaughlin ed. 1952). Even as continental Civil Law shifted
towards more inquisitorial practices, the medieval English legal
system generally adhered to the open and confrontational
method of taking testimony. See John Fortescue, On the Laws
and Governance of England 38-40 (1997).
— gg IN me
13
“(T]he particular vice,” however, “that gave impetus to the
confrontation claim” was the emergence in sixteenth century
England of the continental ritual of trying defendants on
evidence that “consisted solely of ex parte affidavits or
depositions.” California v. Green, 399 U.S. 149, 157 (1970);
see also 1 James Stephen, A History of the Criminal Law of
England 221, 325 (1883). Magistrates generated these state-
ments by examining alleged accomplices and other witnesses
prior to trial. Jd. The examinations were “intended only for
the information of the court. The prisoner had no right to be,
and probably never was, present.” /d. at 221. At the trial itself,
in turn, “[t]he proof was usually given by reading depositions,
confessions of accomplices, letters, and the like; and this
occasioned frequent demands by the prisoner to have his
‘accusers,’ i.e., the witnesses against him, brought before him
face to face.” Jd. at 326; see also 9 W.S. Holdsworth, History
of the English Law 228 (1926). Yet “[t]he crown was not
bound” by any clear rule “to produce its witnesses to be cross-
examined by the accused,” so courts sometimes refused these
demands for confrontation. 9 Holdsworth, supra, at 224, 228.
The “infamous” trial of Sir Walter Raleigh for high treason
in 1603 exemplified the unfairness of this state of affairs.
White v. Illinois, 502 U.S. 346, 361 (1992) (Thomas, J.,
concurring in part and concurring in the judgment); see
generally | Stephen, supra, at 333-36; 9 Holdsworth, supra, at
216-17, 226-28. The principal evidence against Raleigh was a
transcribed examination of Lord Cobham, Raleigh’s alleged
co-conspirator, in which Cobham inculpated himself and
Raleigh in a plot to seize the throne. When the prosecution
presented this evidence, Raleigh demanded to “let my Accuser
come face to face.” Trial of Sir Walter Raleigh, 2 How. St. Tr.
1, 19 (1809). Prior to trial, Cobham had written a letter
absolving Raleigh in the plot, and Raleigh “believed that
Cobham would now testify in his favor.” Green, 399 U.S. at
157 n.10. But the judges stated that “the law of the realm,”
which they construed as barring one charged party from
14
appearing at the trial of another, dictated that “lord Cobham
cannot be brought.” Raleigh, 2 How. St. Tr. at 24.
The judges nevertheless deemed Cobham’s confession
reliable enough to be introduced against Raleigh. They
emphasized that it was self-inculpatory, id. at 14, 19,
“voluntary, and not extracted from [him] upon any hopes or
promise of Pardon.” /d. at 29. It also — of particular relevance
here — was consistent with portions of Raleigh’s pretrial
examination and the confessions of other alleged accomplices.
Id. at 17. The jury convicted Raleigh largely on the basis of
Cobham’s extrajudicial testimony. Years later, one of his trial
judges lamented that the trial “injured and degraded the justice
of England”; another remarked that “I hope that we shall never
see the like again.” Christopher Smith, Biography of Sir
Walter Raleigh, in Britannia Biographies, pt. 15 (1999)
<http://www.britannia.conybios/raleigh/out.html>.
The common law right to confrontation hardened to put an
end to this practice. See Green, 399 U.S. at 156-57; 1 Samuel
R. Gardiner, History of England 138 (1965); Daniel H. Pollitt,
The Right of Confrontation: Its History and Modern Dress, 8
J. Pub. L. 381, 389-90 (1959). By the middie of the seven-
teenth century, witnesses were required to give their testimony
face-to-face, and the accused had the right “to cross-examine
the witnesses against him if he thought fit.” 1 Stephen, supra,
at 358. Accordingly, in 1662, the King’s Bench ruled
unanimously that although a custodial confession was valid
“evidence against the party himself who made the confession,”
it “cannot be made use of as evidence against any others whom
on his examination he confessed to be in the [crime].” Case of
Thomas Tong, Kelyng J., 17, 18, 84 Eng. Rep. 1061-62 (1662).
This night to confrontation was a bright-line rule. Even if a
witness died, his prior ex parte statement to a governmental
officer could not be admitted against the accused because the
defendant “could not cross-examine” the declarant. Rex v.
Paine, 90 Eng. Rep. 1062, 1062 (K.B. 1696) (statement to
justice of the peace); see also Eade v. Lingood, 1 Atk. 203
(1747) (deposition before bankruptcy commissioners).
oe
15
The writings of Hale and Blackstone confirm that the
common law established a categorical rule that incriminating
iestimony be provided at trial and be subjected to cross-
examination. Hale explained that cross-examination “beats and
boults out the Truth much better” than ex parte examinations
with “limited . . . Interrogatories in Writing.” Matthew Hale,
The History of the Common Law of England 164 (Charles M.
Gray ed. 1713). The common law thus provided that “by [the]
personal Appearance and Testimony of Witnesses, there is
Opportunity of confronting the adverse Witnesses; . . . and by
this Means great Opportunities are gained for the true and clear
discovery of the Truth.” /d.
Blackstone’s description of the right to confrontation,
which is even more detailed, is similarly absolute in requiring
the prosecution to establish its case through live witnesses:
This open examination of witnesses viva voce, in the
presence of all mankind, is much more conducive to
the clearing up of truth, than the private and secret
examination taken down in writing before an officer,
or his clerk in the ecclesiastical courts and all others
that have borrowed their practice from civil law:
where a witness may frequently depose that in private,
which he will be ashamed to testify in a public and
solemn tribunal. There an artful or careless scribe
may make a witness speak what he never meant, by
dressing up his depositions in his own forms and
language; but he is here at liberty to correct and
explain his meaning, if misunderstood, which he can
never do after a written deposition is once taken.
Besides the occasional questions of the judge, the
jury, and the counsel, propounded to the witnesses on
a sudden, will sift out the truth much better than a
formal set of interrogatories previously penned and
settled: and the confronting of adverse witnesses is
also another opportunity of obtaining a clear
discovery, which can never be had upon any other
method of trial. . . . In short by this method of
16
examination, and this only, the persons who are to
decide upon the evidence have an opportunity of
observing the quality, age, education, understanding,
behavior, and inclinations of the witness; in which
points all persons must appear alike, when their
depositions are reduced to writing, and read to the
judge, in the absence of those who made them: and
yet as much may be frequently collected from the
manner in which the evidence is delivered, as from the
matter of it.
3 William Blackstone, Commentaries on the Laws of England
*373-74 (1768). Witnesses were required to be available for
cross-examination, in short, because this procedure was viewed
as the “only” acceptable way of taking potentially
incriminating testimony. Jd. at *373. No other method ~
especially not ex parte depositions — was trusted to “sift out the
truth.” Jd.
By the time that America’s colonization was beginning in
earnest, it was “settled doctrine” under the common law system
that ex parte testimonial statements incriminating criminal
defendants were inadmissible because “statements used as
testimony must be made where the maker can be subjected to
cross-examination.” 5 Wigmore on Evidence § 1364, at 26
(Chadbourn rev. 1974). This rule flatly prevented the
government from using accomplices’ custodial statements
against anyone other than themselves.
2. The Confrontation Clause’s Codification of the
Common Law Rule.
States and the Framers of the Sixth Amendment adopted
the common law right to confrontation in order to prohibit
abuses such as those in Raleigh’s trial from ever coming to
roost in the United States. See United States v. Inadi, 475 US.
387, 411 (Marshall, J., dissenting) (“The plight of Sir Walter
Raleigh, condemned on the deposition of an alleged
accomplice who had since recanted, may have loomed large in
the eyes of those who drafted that constitutional guarantee.”’);
Mattox v. United States, 156 U.S. 237, 242 (1895) (“pmmary
17
object” of Confrontation Clause is “to prevent depositions or
ex parte affidavits . . . being used against the prisoner in lieu of
a personal examination and cross-examination of the witness”);
Francis H. Heller, The Sixth Amendment 104 (1951) (tracing
Clause to reaction to Raleigh’s trial). Like the English lawyers
and judges before them, Americans understood this right to
confrontation as prohibiting a nontestifying accomplice’s
examination or other ex parte testimony from ever being
introduced against a criminal defendant.
While defending a client in a criminal case, for instance,
John Adams noted that “[e]xaminations of witnesses upon
Interrogatories, are only by the Civil Law. Interrogatories are
unknown at common Law, and Englishmen and common Law-
yers have an aversion to them if not an Abhorrence of them.” 2
Legal Papers of John Adams 207 (Wroth & Zobel eds., 1965).
The first Continental Congress delivered an address to foreign-
ers detailing “the essential rights of the colonists,” stressing
that among these rights was the right of people accused of
crimes to “full enquiry, face to face, in open court’”
concerning any testimony offered against them. Sources of
Our Liberties 284 (Richard L. Perry ed. 1959) (quoting !
Journals of the American Congress, 1774-1788 41-42 (1823)).
Thus, when an Antifederalist leader in the struggle for a
bill of rights complained that the proposed constitution omitted
“essential rights, which we have justly understood to be the
rights of freemen,” he quickly mentioned the nght to
confrontation and characterized it as an absolute procedural
right: “Nothing can be more essential than the cross examining
witnesses, and generally before the triers of the facts in
question.” Richard Henry Lee, Letter IV by The Federal
Farmer (Oct. 15, 1787), reprinted in 1 Bernard Schwartz, The
Bill of Rights: A Documentary History 469, 473 (1971). The
author further explained that written testssomy, even if given
merely for expediency rather than in bad faith, was “almost
useless; it must be frequently taken ex parte, and but very
seldom leads to the proper discovery of truth.” Jd.
18
Shortly after the Bill of Rights was adopted, Chief Justice
Marshall applied the Confrontation Clause in the trial of
Colonel Aaron Burr in a manner that confirmed its prohibition
against using ex parte testimonial statements to convict
criminal defendants. The federal government indicted Burr for
plotting to lead an illegal military expedition and sought to
introduce declarations “tending to ‘mplicate Colonel Burr” that
one Blennerhassett gave after the alleged plot was snuffed out.
United States v. Burr, 25 F. Cas. 187, 193 (C.C. Va. 1807) (No.
14,694). The government argued that even though Blenner-
hassett was unavailable to testify at trial, his declarations were
admissible because they related to a conspiracy and because he
and Burr “were accomplices.” Jd. In addition to ruling that the
declarations were not agmissible as conspiratorial statements
because they were not given in furtherance of the alleged
wrongdoing and because the government did not allege a
conspiracy in any eveut, Chief Justice Marshall emphatically
rejected the government's alternative argument that
Blennerhassett’s declarations were admissible as accomplice
confessions:
I know not why . . a man should have a
constitutional claim to be confronted with the
witnesses against him, if mere verbal declarations,
made in his absence, may be evidence against him. |
know of no principle in the preservation of which all
are more concerned. I know of none, by undermining
which, life, liberty, and property, might be more
endangered. It is therefore incumbent on courts to be
watchful of every inroad on a principle so truly
important.
Id. at 193. Chief Justice Marshall then explained how the
Confrontation Clause operated, echoing the King’s Bench’s
decision in Tong's Case a century and one-half before:
[W]here A., B., and C. are indicted for murdering D., .
-. the declarations of one of the parties made in the
absence of the others have never been admitted as
evidence against the others.
;
:
|
19
... If, for example, one of several men who had
united in committing a murder should have said, that
he with the others contemplated the fact which was
afterwards committed, I know of no case which would
warrant the admission of this testimony upon the trial
of a person who was not present when the words were
spoken.
Id. at 194-95 (emphasis added). Applying this bright-line rule,
Chief Justice Marshall concluded that “the declarations of third
persons not forming part of the transaction, and not made in the
presence of the accused, cannot be received as evidence in this
case.” Jd. at 198. He never inquired into whether
Blennerhassett’s confession interlocked with any statement
Burr had offered or whether it otherwise evinced indications of
reliability. The fact that Blennerhassett’s declarations were
given outside Burr’s presence was enough to render them
inadmissible.
Contemporary state court decisions applying parallel state
provisions confirm that the American right to confrontation,
replicating the common law night, was intended to bar the
introduction of all incriminating testimony that had not been
subjected cross-examination.’ In State v. Webb, 2 N.C. (1
Hayw.) 103 (1794), the first reported decision involving a state
confrontation provision, the North Carolina court refused to
allow an ex parte deposition to be read into evidence against
? Several states adopted bills or declarations of ri ior to the adoption
fae bhai Comingion, oh ome enn on ae provided for
the right to confrontation. See Va. Bill of Rights § 8 (1776); Pa. Const. §
A(IX) (1776); N.C. Decl. of Rights Art. VII (1776); Del. Decl. of Rights §
14 (1776); Md. Decl. of Rights Art. XIX (1776); Vt. Decl. of Rights Art. X
(1777); Mass Const. Art. XII (1780); N.H. Bill of Rights Art. (1784).
Several early court decisions in other states confirm that , too, intended
to codify the common law right. See, e.g., Anthony v. State, 19 Tenn.
(Meigs) 265, 277-278 (1838) (state ion clause “was not to
introduce a new principle” but to preserve a right won in “after a
contest with the crown”); Campbell v. State, 11 Ga. 353, 374 (1852)
( of a party accused of a crime, to meet the witnesses against him,
face to is no new principle. It is coeval with the Common Law.”);
Summons v. Ohio, 5 Ohio St. 325, 340 (1856) (same).
20
the accused, explaining that “it is a rule of the common law,
founded on natural justice, that no man shall be prejudiced by
evidence which he had not the liberty to cross examine.” /d. at
103. A Tennessee court later expressed agreement with Webb,
and upheld the admission of a deceased witness’s prior
accusatory testimony under the state confrontation clause only
because it had been offered in the defendant’s presence where
“he had the liberty to cross-examine” the witness. Johnston v.
State, 10 Tenn. (2 Yer.) 58, 59 (1821). The highest court in
South Carolina, moreover, overturned a conviction because the
‘trial court admitted a sworn deposition to a coroner implicating
defendant. Brushing aside any suggestion that the “solemnity
of the occasion or the weight of the testimony” permitted its
admission, the court ruled that “such depositions are ex parte,
and, therefore, utterly incompetent.” State v. Campbell, 30
S.C.L. (1 Rich.) 124, 1844 WL 2558, at *1 (1844).
When this Court first considered the Confrontation Clause
at length, it properly treated the right to confrontation, “in light
of the law as it existed at the time it was adopted,” Mattox 156
U.S. at 243, as a procedural requirement that all testimony
offered against the accused be subject to cross-examination.
This Court thus endorsed the South Carolina Court of Appeals’
decision in Campbell, observing that since the testimony there
was taken in the absence of the accused, “of course it was held
to be inadmissible.” Mattox, 156 U.S. at 241 (emphasis
added). In contrast, this Court held in the case before it that the
Confrontation Clause permitted the admission of testimony
from a prior trial involving the same defendant and the same
charge. “The substance of the constitutional protection,” this
Court explained, “is preserved to the prisoner in the advantage
he has once had of seeing the witness face to face, and of
subjecting him to the ordeal of a cross-examination.” Jd. at
244. There is no mention anywbere in the opinion of the
admissibility of out-of-court testimony turning on its purported
reliability; the sole test was whether it had been subjected to
cross-examination, a right that this Court stated defendants
21
“shall under no circumstances be deprived of.” Jd. at 244
(emphasis added).
Other decisions during this period followed the same
pattern. Motes v. United States, 178 U.S. 458 (1900), much
like this case, involved the prosecution’s use of an
accomplice’s “statement in the nature of a confession” that
implicated the accused individuals in the charged offense, one
of whom also confessed to the crime. /d. at 470-72. The
accomplice had given his confession at the defendants’
preliminary examination and then absconded. At trial, the
government offered the accomplice’s prior testimony as
evidence against the other defendants. On review, this Court
held that the admission of this testimony violated the
confrontation rights of a// of the other defendants, including the
one who also had confessed. /d. at 471. This Court found it
unnecessary to inquire whether the accomplice’s confession
interlocked with the other defendant’s or appeared otherwise
reliable. Rather, this Court followed an opinion from the
Queen’s Bench terming it an “absolute” rule that the accused
have “a witness for the prosecution against him examined and
cross-examined before the jury.” Jd. at 473-74 (quoting Regina
v. Scaife, 2 Den. C.C. 281, 285 (1851) (Lord Campbell, C.J.)).
In another case, this Court likewise applied the unequivocal
common law rule that an accomplice’s “confession is no
evidence against the prisoner” in holding that an accomplice’s
guilty plea for theft was inadmissible against the accused to
prove that the property he received was stolen. Kirby v. United
States, 174 U.S. 47, 53-60 (1899). Once again, this Court
made no reference to any possible exception for interlocking or
otherwise reliable confessions.
> In construing the confrontation section of the Philippine Bill of Rights,
which is “substantially the provision of the 6th Amendment,” this
similarly explained that the section “intends to secure the accused the nght
to be tried, so far as facts provable by witnesses are concerned, by on/y such
witnesses as meet him face to face at the trial, who give their testimony in
his presence, and give the accused an opportunity for cross-examination.”
Dowdell v. United , 221 U.S. 325, 329-30 (1911) (emphasis added).
22
3. This Court’s Modern Jurisprudence.
The results of this Court’s modern confrontation decisions
accord with the traditional prohibition against admitting any
incriminating testimonial statements that have not been
subjected to cross-examination.
This Court has found the Confrontation Clause violated
each time it has considered a criminal case in which the
prosecution introduced a nontestifying accomplice’s custodial
statement or a nontestifying witness’s prior testimony that was
not subject to cross-examination. See Lilly, 527 U.S. 116
(accomplice’s custodial confession); Jdaho v. Wright, 497 U.S.
805 (1990) (alleged victim’s statements to doctor made in
apparent coordination with police’s investigation of defendant);
Lee v. Illinois, 476 U.S. 530 (1986) (accomplice’s custodial
confession); Berger v. California, 393 U.S. 314 (1969) (per
curiam) (preliminary hearing testimony); Brookhart v. Janis,
384 U.S. 1 (1966) (accomplice’s custodial confession);
Douglas v. Alabama, 380 U.S. 415 (1965) (accomplice’s
custodial confession); Pointer v. Texas, 380 U.S. 400 (1965)
(testimony at preliminary hearing). In a series of cases
beginning with Bruton v. United States, 391 U.S. 123 (1968),
this Court also has held that in joint trials the Confrontation
Clause prohibits the admission of nontestifying accomplices’
custodial confessions against even the accomplices themselves
when the confession also incriminates the codefendant. See
also Roberts v. Russell, 392 U.S. 293 (1968) (per curiam); Cruz
v. New York, 481 U.S. 186 (1987); Gray v. Maryland, 523 U.S.
185 (1998). The reason for this rule is that even if a judge
instructs jurors to consider such a confession as evidence
against only the accomplice, it is too likely that the jurors
nevertheless will take it into account in adjudicating the guilt of
the codefendant, in violation of the codefendant’s mght to
confrontation. E.g., Bruton, 391 U.S. at 135
At the same time, this Court has condoned the use of an
unavailable witness’ S prior testimony against the accused when
the witness was subject to cross-examination —~ the prior
testimony. See Ohio v. Roberts, 448 U.S. 56 (1980)
23
(preliminary hearing testimony where witness was subject to
“the equivalent of significant cross-examination”); Mancusi v.
Stubbs, 408 U.S. 204 (1972) (testimony from a prior trial on
same charges where witness was subject to “adequate” cross-
examination); Green, 399 U.S. 149 (preliminary hearing
testimony when witness was subjected to “full” cross-
examination). This Court also has allowed the prosecution to
introduce hearsay statements against defendants when the
statements were made under nontestimonial circumstances —
that is, when they were made without litigation in mind. See
White, 502 U.S. 346 (spontaneous declaration and medical-
treatment statement by a child); Bourjaily v. United States, 483
U.S. 171 (1987) (co-conspirator’s statement to another co-
conspirator); United States v. Inadi, 475 U.S. 387 (1986)
(same); Dutton v. Evans, 400 U.S. 74 (1970) (same).
The landscape of these decisions, interpreted through the
prism of the traditional understanding of the right to confront-
ation, evokes a straightforward rule: The Confrontation Clause
bars the government in criminal cases from introducing
“testimony” that is not subject to (and has not previously been
subjected to) cross-examination by the defendant. In concrete
terms, this rule prohibits the prosecution from introducing ex
parte in-court testimony or its functional equivalent — that is,
material such as affidavits, custodial examinations, prior
testimony that the defendant was unable to cross-examine, or
similar pretrial statements that declarants would reasonably
expect to be used prosecutorially. See White, 502 U.S. at 365
(Thomas, J., concurring in part and concurring in judgment).
The Clause, however, does not apply to hearsay statements
made unrelated to any pending or potential prosecution.
B. This Traditional Construction of the Confrontation
Clause Dictates that Sylvia’s Custodial Examin-
ation Was Inadmissible Against Petitioner, Re-
gardiess of Whether It Appears To Be “Reliable.”
Applying this traditional, testimonial understanding of the
Confrontation Clause, the proper result here is clear:
Petitioner’s confrontation rights were violated because the
24
State introduced a nontestifying accomplice’s custodial
examination implicating him in the charged offense. The
accomplice gave this out-of-court statement to State officials
for reasons related to its anticipated prosecution of Petitioner,
but the statement was never subjected to cross-examination.
Indeed, the transcript of Sylvia’s examination reads just like ex
parte deposition testimony, see J.A. 124-41, the precise kind of
evidence the Confrontation Clause is meant to bar from
criminal trials. And the State used the extrajudicial statement
at trial just like other witness testimony: “The defendant’s own
wife,” the State argued at closing, “gives damning evidence in
this case. . . . She describes an intentional stabbing of Mr. Lee
and completely refutes his claim of self-defense.” Report of
Proceedings at 468. The Confrontation Clause simply forbids
the use of such untested accusations against criminal
defendants. See Lilly, 527 U.S. at 143 (Scalia, J., concurring in
part and concurring in the judgment) (use of nontestifying
accomplice’s confession against defendant is a “paradigmatic
Confrontation Clause violation”); Bruton, 391 U.S. at 138
(Stewart, J., concurring) (“[A]n out-of-court accusation is
universally conceded to be constitutionally inadmissible
against the accused.”). :
Two of this Court’s “incorporation”-era decisions, in fact,
provide particularly forceful support for this result. In
Douglas, which, like this case, involved the admissibility of a
nontestifying accomplice’s incriminating statement, this Court
unanimously held that the defendant’s “inability to cross-
examine [the accomplice] as to the alleged confession plainly
denied him the right of cross-examination secured by the
Confrontation Clause.” 380 U.S. at 419. Even though the
accomplice’s confession appeared to be quite self-inculpatory
and therefore potentially interlocking with the defendant’s, see
id. at 417 n.3, this Court did not find it necessary to examine
whether the confession appeared reliable on this or any other
basis. Rather, this Court construed the Confrontation Clause,
consistent with the common law, as guaranteeing “the right to
cross-examination” and found the Clause violated simply
;
ah
— wee wer we . “=
ee tee e+
25
because the out-of-court testimony had never been so tested.
Id. at 419. In Brookhart, this Court likewise ruled in
categorical terms that the defendant’s confrontation right was
violated because “there was introduced as evidence against him
an alleged confession, made out of court by one of his co-
defendants [who pleaded guilty before trial], who did not
testify in court, and [the defendant] was therefore denied any
opportunity whatever to confront and cross-examine the
witness who made this very damaging statement.” 384 U.S. at
4. The opinion never inquired into the confession’s reliability.
The bright-line rule applied in these decisions, combined
with the centuries of confrontation jurisprudence, renders
irrelevant the Washington Supreme Court’s conclusion that
Sylvia’s custodial statement was “reliable” because it “inter-
locked” with Petitioner’s custodial statement. The right to
confrontation is a procedural requirement that the government
prove its case through live testimony that is subject to cross-
examination. The introduction of Sylvia’s ex parte custodial
examinution violated this rule because the State obtained her
incriminating statements for use in its anticipated prosecution
of Petitioner and Sylvia was unavailable for cross-examination.
C. To the Extent that Reasoning in Ohio v. Roberts
and Subsequent Cases Permits the Admission of
Incriminating Testimonial Statements When
Courts Deem Them Reliable, That Methodology
Should Be Abandoned.
Although the results of every one of this Court’s decisions
accords with the traditional rule that the Confrontation Clause
prohibits the admission of any incriminating testimonial
statement that has not been subjected to cross-examination,
some reasoning in this Court’s recent confrontation cases
admittedly suggests otherwise. In Ohio v. Roberts, instead of
describing the Confrontation Clause as a bright-line procedural
rule, this Court characterized the provision as one concerned
with measuring the “trustworthiness” or “reliability” of
evidence. 448 U.S. at 65. This Court consequently linked the
Confrontation Clause directly to hearsay law and stated that the
26
Clause permits an extrajudicial statement to be admitted
against the accused if the statement (i) falls within a firmly
rooted hearsay exception or (ii) has “particularized guarantees
of trustworthiness.” Jd. at 66. Although Roberts itself
involved prior testimony that had been subjected to cross-
examination, this Court indicated in subsequent cases involving
incriminating testimonial statements that the framework’s
reliability-based inquiries may still be satisfied without prior
cross-examination if the hearsay rule at issue or the “totality of
the circumstances*-suggest that the statement is sufficiently
trustworthy. See Lee, 476 U.S. at 543 (accomplice’s custodial
confession); Wright, 497 U.S. at 819-20 (victim’s statement to
doctor in coordination with police); Lilly, 527 U.S. at 124-25 &
144-47 (plurality opinion & opinion of Rehnquist, C.J.,
concurring in the judgment) (accomplice’s custodial
confession).
In recent years, however, several Justices of this Court,
numerous leading scholars, and the United States, under two
different Solicitor Generals, have urged this Court to
reconsider the Roberts framework with an eye toward
reinstating the traditional, testimonial approach to the Clause.
See, e.g., Lilly, 527 U.S. at 140-43 (Breyer, J., concurring);
White, 502 U.S. at 366 (Thomas, J., joined by Scalia, J.,
concurring in part and concurring in judgment); Akhil Reed
Amar, The Constitution and Criminal Procedure 129-31 &
n.194 (1997); Margaret A. Berger, The Deconstitutionalization
of the Confrontation Clause: A Proposal for a Prosecutorial
Restraint Model, 76 Minn. L. Rev. 559 (1992); Joshua C.
Dickinson, The Confrontation Clause and the Hearsay Rule:
The Current State of a Failed Marriage in Need of a Quick
Divorce, 33 Creighton L. Rev. 763 (2000); Richard D.
Friedman, Confrontation: The Search for Basic Principles, 86
Geo. L. Rev. 1011 (1998); Brief for United States at 17-29,
White v. Illinois, 502 U.S. 346 (1992) (No. 90-6113); Brief for
United States at 12-24, 27-28, 33-36, United States v. Inadi,
475 U.S. 387 (1986) (No. 84-1580). It should do so now.
Se <> -
27
This Court has not hesitated to reexamine reasoning that
has crept into other areas of its jurisprudence when evidence
has emerged indicating that such reasoning lacks constitutional
grounding and breeds confusion in the law. In Sandin v.
Conner, 515 U.S. 472 (1995), for instance, this Court
reconsidered a due process methodology that had developed in
a line of cases over a sixteen-year period beginning in 1979.
Concluding that the methodology had “strayed from the real
concerns undergirding the liberty protected by the Due Process
Clause,” this Court abandoned it and “return[ed] to the due
process principles we believe were correctly established and
applied in [earlier cases].” Jd. at 483 (1995). In so doing, this
Court explained that “[sJuch abandonment . . . does not
technically require us to overrule any holding of this Court,”
but rather “only abandons an approach that in practice is
difficult to administer and which produces anomalous results.”
Id. at 483 n.5. In Collins v. Youngblood, 497 U.S. 37 (1990),
moreover, this Court reexamined the roots of the Ex Post Facto
Clause and went so far as to overrule two cases that had
“imported confusion into the interpretation of the [Clause}” and
that its examination revealed were inconsistent with “the
understanding of the term ‘ex post facto \aw’ at the time the
Constitution was adopted.” /d. at 45-47.
The actions in these cases dictate that this Court take a
similar step here. The confrontation methodology that this
Court coined in Roberts and that it has applied in subsequent
cases: (1) conflicts with the history, purpose, text, and structure
of the Confrontation Clause; and (2) imports unnecessary
confusion and inconsistency into the law. Consequently, this
Court should abandon the Roberts framework and restore the
Confrontation Clause’s traditional bright-line rule prohibiting
the admission of untested testimonial statements that
incriminate criminal defendants. This action, as in Sandin,
would not require this Court to overrule any of its prior
decisions, but would merely “abandon{] an approach thai in
practice is difficult to administer and which produces
anomalous results.” 515 U.S. at 483 n.5.
28
1. The Roberts Framework Is at Odds With the
History, Purpose, Text, and Structure of the
Confrontation Clause.
Upon close inspection, the Roberts framework, as it has
developed and been applied in subsequent cases, contravenes
every conventional measure of constitutional law.
History. The development of the common law right to
confrontation and all of this Court’s decisions applying the
Confrontation Clause until very recently center on the
procedural requirement that incriminating testimony be subject
to cross-examination, not, as the Roberts framework does, on
the evidentiary question whether statements introduced against
defendants are “reliable.”
Reliability is a subjective concept that is the touchstone for
hearsay law. Yet the right to confrontation developed long
before and separately from the concept of hearsay. See, e.g.,
Lilly, 527 U.S. at 140-41 (Breyer, J., concurring). “Hearsay
doctrine, like evidentiary law more generally, was not well
developed even at the time the [Confrontation Clause] was
adopted, much less during the previous centuries.” Richard D.
Friedman & Bridget McCormack, Dial-In Testimony, 150 U.
Pa. L. Rev. 1171, 1208 (2002). Indeed, as the United States
has reported to this Court, “as best as we can determine, not a
word was spoken or written — by those who sought the
adoption of the bill of rights, by the First Congress, or by state
legislatures that ratified the Bill of Rights — to suggest that the
confrontation right had anything to do with the general
regulation of hearsay or the details of the law of evidence.”
Brief for United States at 19, United States v. Inadi, 475 U.S.
387 (1986) (No. 84-1580); accord Brief for United States at 21,
White v. Illinois, 502 U.S. 346 (1992) (No. 90-6113) (“There is
no historical basis, however, for regarding the right to
confrontation as a general limitation on the admission of
hearsay evidence.”); see also White, 502 U.S. at 362 (Thomas,
J., concurring in part and concurring in the judgment) (“There
appears to be little if any indication in the historical record”
29
that the Confrontation Clause was understood as linked to
hearsay law).
Contrary to Roberts’ implication, therefore, “/a/ccurate
trials was not the driving force behind the Confrontation
Clause and related provisions. . . . [T]he Sixth Amendment
guaranteed an adversarial trial by constitutionalizing a number
of interdependent rights so the accused could present a defense
and challenge the government’s case. Defense cross-
examination is crucial to this scheme, and confrontation sought
to preserve defense opportunities for exercising that right.”
Randolph N. Jonakait, The Origins of the Confrontation
Clause: An Alternative History, 27 Rutgers L.J. 77, 168 (1995)
(emphasis added). The process of cross-examination, in other
words, was guaranteed in and of itself; it was not understood to
ebb and flow depending on the perceived reliability of
extrajudicial testimony offered in any particular case. See
White, 502 U.S. at 363 (Thomas, J., concurring in part and
concurring in the judgment) (“Nor does it seem likely that the
drafters of the Sixth Amendment intended to permit a
defendant to be tried on the basis of ex parte affidavits found to
be reliable.”); Summons v. State, 5 Ohio St. 325, 325 (1856)
(right to confrontation “has reference to the personal presence
of the witnesses called to testify, and not to the quality or
competency of the evidence to be given”).
Indeed, as several scholars have pointed out, “neither in
the [historical] statutes, caselaw, nor commentary was there a
suggestion that, if courts determined that a particular item of
type of testimony was reliable, then the accused lost his right to
confrontation. On the contrary, the confrontation principle was
a categorical rule, a basic matter of the procedures by which
testimony was taken.” Friedman & McCormack, Dial-In
Testimony, 150 U. Pa. L. Rev. at 1208; see also Amar, supra,
at 125-26, 130 (purpose of Clause was to codify bright-line
rule requiring cross-examination of testimony, not to institute a
balancing test); Berger, 76 Minn. L. Rev. at 559, 572 (The
Court’s “insistence that the sole function of the Confrontation
Clause is to promote accurate fact-finding ignores the historical
30
background against which the Clause was drafted and
overlooks the context in which it is placed.” Complaints that
led to creation of the right to confrontation “have less of an
evidentiary than a procedural flavor.”); Heller, supra, at 104-05
(Confrontation Clause is meant to prevent abuses of trial-by-
affidavit and secures an “unequivocal” right to cross-
examination). As a procedural mechanism, in other words, the
Framers intended the right to confrontation to be applied in an
unwavering manner to all witness testimony, not as an
evidentiary evaluator to be invoked on a case-by-case basis
depending upon judges’ views of testimony’s reliability.
Reliability, to be sure, is among the hallmarks of the
adversarial process that the Confrontation Clause requires, but
the Clause’s history makes clear that it “does not guarantee
reliable evidence; it guarantees specific trial procedures that
were thought to assure reliable evidence.” Maryland v. Craig,
497 U.S. 836, 862 (1990) (Scalia, J., dissenting). Blackstone’s
description of the right to confrontation as requiring the
prosecution to prove its case through in-court testimony before
the defendant, the judge, and an observant jury emphasizes that
such live testimony “clear[s] up the truth” in a manner that can
“never” be assured through the use of prior declarations created
on an ex parte basis. Blackstone, supra, at *373-74. This
explains why Raleigh’s trial came to be viewed as notorious
even though the judges — in reasoning foreshadowing the trial
court’s and the Washington Supreme Court’s logic in this case
— found that Lord Cobham’s confession appeared reliable in
that it was self-inculpatory, voluntarily given, and corroborated
by others’ confessions. See supra at 14. Using the Roberts
framework now to admit a nontestifying accomplice’s
confession on such bases utilizes a methodology tantamount to
the one that ignited the march toward the Confrontation Clause
several hundred years ago.
Purpose. The Roberts framework also wanders from the
traditional purposes of the Confrontation Clause — namely, to
prevent defendants from being convicted on the basis of
untested accusations and to govern the method by which the
31
government presents testimony in criminal cases. “Viewed in
light of [these] traditional purposes,” as Justice Breyer has
suggested, “the [Roberts] hearsay-based Confrontation Clause
test . . . is both too narrow and too broad.” Lilly, 527 U.S. at
141 (Breyer, J., concurring).
The Roberts framework is too narrow insofar as it
authorizes the admission of ex parte statements “prepared as
testimony for trial when such statements happen to fall within
some well-recognized hearsay exception” or a court determines
that they otherwise appear reliable. Jd. The Framers of the
Confrontation Clause believed that the on/y way to ensure that
testimony was dependable enough to support a criminal
conviction was to subject it to cross-examination. But while
the Roberts framework respects cross-examination’s usefulness
in “mak[ing] it more difficult to lie against someone,” Roberts,
448 U.S. at 63 n.6 (quotation omitted), or guaranteeing “the
declarant’s truthfulness,” Wright, 497 U.S. at 820, it overlooks
the fact that this is not the only — or even the primary — purpose
of cross-examination. The process of face-to-face testimony
subject to cross-examination also traditionally has been
considered an indispensable method of enhancing the accuracy
and thoroughness of the testimony of even perfectly honest
witnesses. And it was this purpose that drove the Framers to
incorporate the Confrontation Clause into the Constitution.
At common law, “the opinion of the time seems to have
been that if a man came and swore to anything whatever, he
ought to be believed unless he was directly contradicted.” 1
Stephen, supra, at 399-400; accord Benson v. United States,
146 U.S. 325, 336 (1892). Blackstone thus endorsed cross-
examination not as a means of exposing liars but of preventing
the government from “dressing up” a witnesses’ testimony
without allowing him, upon questioning by the defendant, “‘to
correct and explain his meaning, if misunderstood.” 3
Blackstone, supra, at *373. In addition, because witnesses
whose recollections are faulty may not realize them as such
until searching questions from the defendant cause the
witnesses to reexamine their perceptions, another leading
32
expositor of the English common law explained that cross-
examination
constitutes a strong test both of the ability and the
willingness of the witness to declare the truth. By this
means, the opportunity which the witness had of
ascertaining the fact to which he testifies, his ability to
acquire the requisite knowledge, his powers of
memory, his situation with respect to the parties, his
motives, are all severally examined and scrutinized.
Thomas Starkie, A Practical Treatise of the Law of Evidence
34 (4th ed. 1853) (emphasis added). American lawyers and
judges at Founding likewise placed great faith in oaths and
generally assumed that witnesses, whether making declarations
in court or signing ex parte affidavits, would try to be honest.
See Amar, supra, at 129.‘ Cross-examination was used “to
correct any misconception of facts, to elicit truth, and justify
the severe retribution awarded in cases of clear guilt.”
Campbell, 30 S.C.L. 124, 1844 WL 2558, at *2.
The night to confrontation, therefore, was not meant so
much to smoke out lying witnesses as it was intended to
prevent the government from using testimony from a witness
who, in perfectly good faith, offered only some of the pertinent
facts (often because the government asked only certain
questions) or relayed mistaken impressions of often
complicated or stressful events. See Amar, supra, at 125;
Berger, 76 Minn. L. Rev. at 573-74. Prior to Roberts, in fact,
this Court recognized that cross-examination ensured the
accuracy of testimony given even under seemingly dependable
circumstances, observing that confrontation operates
“particularly to preserve the right of the accused to test the
recollection of the witness in the exercise of cross-
examination.” Dowdell, 221 U.S. at 330; see also Mattox, 156
* The Constitution itself relies on oaths in several key passages. See U.S.
Const. art. I, § 3, cl. 3 (requiring “oath or affirmation” when Senate sits in
impeachment trial); id. art VI, cl. 3 (requiring various officers and
legislators to take “oath or affirmation” to support the Constitution); id.
amend. IV (requiring “oath or affirmation” for search or seizure warrant);
id. amend. XIV, § 3 (disqualifying Confederate oath breakers).
33
U.S. at 242 (cross-examination allows defendant to “test[] the
recollection and sift[] the conscience of the witness”). Indeed,
the Roberts Court itself found the prior testimony at issue to be
sufficiently reliable for confrontation purposes only because
the testimony had been subjected to cross-examination. 448
U.S. at 73; see also Mancusi, 408 U.S. at 216 (same). The
suggestions after Roberts, however, in Lee, Wright, and Lilly
that testimony might be reliable enough for confrontation
purposes in the absence of cross-examination overlook this
additional truth-seeking purpose of cross-examination and
misconceive the right to confrontation. This Court was correct
in Mattox when it said that the right to “cross-examination,”
not any entitlement to reliable evidence, was the right that the
Confrontation Clause guarantees that defendants “shall under
no circumstances be deprived of.” 156 U.S. at 244.
The Roberts framework, at the same time, is too broad
insofar as it “make[s] a constitutional issue out of the
admission of any relevant hearsay statement, even if that
hearsay statement . . . was made long before the crime occurred
and without relation to the prospect of a future trial.” Lilly, 527
U.S. at 142 (Breyer, J., concurring). This requires every
hearsay exception in every jurisdiction across the country that
is applied in a criminal case to obtain the blessing of the
Confrontation Clause. If nontestimonial hearsay evidence does
not fall within a “firmly rooted” exception and a court finds
that it does not evince sufficient indicia of reliability, the court
must exclude it. Although this Court thus far has not invoked
Roberts to exclude any such evidence, see supra at 23, fairly -
applying its framework in other cases unquestionably bans the
introduction of some otherwise acceptable hearsay evidence,
such as some business records or one friend’s note to another.
See, e.g., Lilly, 527 U.S. at 142 (Breyer, J., concurring); United
States v. Ordonez, 737 F.2d 793, 802 (9th Cir. 1984) (invoking
Roberts to bar admission of business ledger entries).
Such nontestimonial evidence, however, does not resemble
the abusive ex parte examinations that the crown used in
sixteenth century England or implicate any of the core
34
concerns of the Confrontation Clause. It is not created for
prosecutorial authorities’ use in investigating or prosecuting
crime. Nor is it typically subject to molding by interested
parties who may wish to lead the speaker in a certain direction
or to discuss only certain aspects of an episode. And, unlike
pretrial depositions or custodial examinations, nontestimonial
hearsay does come to a jury as a second-best means (compared
to trial testimony) of capturing and relaying a person’s
impressions and recollections. To the contrary, out-of-court
statements made unconnected to any litigation tend to have an
authenticity and probative value that “cannot be replicated even
if the declarant testifies to the same matters in court.” Jnadi,
475 U.S. at 395 (describing co-conspirator statements); see
also White, 502 U.S. at 356 (spontaneous utterances and
statements for medial care have a “reliability [that] cannot be
recaptured even by later in-court testimony”).
Abandoning the Roberts framework would terminate the
Confrontation Clause’s unnecessary and potentially mis-
chievous oversight of this sphere of ordinary hearsay law — a
function that the Clause was never meant to perform.
Text. Prohibiting the government from introducing ex
parte testimonial statements, including accomplices’ custodial
examinations, against criminal defendants also accords with the
text of the Confrontation Clause. The ordinary meaning of the
Confrontation Clause, which states that the accused “shall have
the right” to confrontation, U.S. Const. amend. VI, guarantees
* To the extent that this Court might be concemed about removing
constitutional oversight entirely from the development and application of
nontestimonial hearsay law, cf. White, 502 U.S. at 352, the Process
Clause can carry out that role. As this Court stated in Green, “we may
agree that considerations of due process, wholly apart from the
Confrontation Clause, might prevent convictions where a reliable
evidentiary basis is totally lacking.” 399 U.S. at 163 n.15. Indeed, the Due
Process Clause was already serving this role until Roberts effectively
reassigned the job to the Sixth Amen t. See Manson v. Brathwaite, 432
U.S. 98, 106 (1977) (Due Process Clause forbids testimony that lacks
“sufficient aspects of reliability” to be intelligently evaluated by the juy);
United States v. Shoupe, 548 F.2d 636, 643-44 (6th Cir. 1977) (holding that
disavowed, unsworn, and _ uncorroborated hearsay statement was
insufficiently reliable to satisfy due process).
2
i
35
defendants an unconditional right to challenge the testimony of
witnesses against him. There is no mention of reliability or
accurate fact-finding. There are no qualifications or
exceptions. See White, 502 U.S. at 363 (Thomas, a
concurring in part and concurring in the judgment) (“the
Clause makes no distinction based on the reliability of the
evidence presented”). But the Roberts framework rewrites the
Clause to enforce the right to confrontation only if proffered
testimony appears unreliable. Like the hearsay law it refer-
ences, the framework makes exceptions as common as the rule.
The absence, however. of any such actual qualifications in
the language of the Confrontation Clause is telling. Unlike
situations in which a procedure or technology that was
unknown to the Framers develops and this Court must
hypothesize regarding how the Constitution is meant to apply
under new circumstances, see, e.g., Kyllo v. United States, 533
U.S. 27 (2001), the Framers, as noted above, were keenly
aware of possibility of using nontestifying accomplices
confessions and other untested extrajudicial testimony against
criminal defendants. That they did not provide any potential
exceptions to the prohibition against the use of such testimony
is a forceful signal that the Confrontation Clause categorically
prohibits the admission of any such untested statement,
whether courts deem it reliable or not. This signal is especially
telling when one puts the language of the Confrontation Clause
side-by-side with value-laden provisions such as the Fourth
Amendment (which prohibits “unreasonable” searches) and the
Eighth Amendment (which prohibits “cruel and unus
punishment). The unqualified language of the Confrontation
Clause shows that it establishes a bright-line rule of procedure,
not a malleable standard of admissibility.
The Roberts framework, moreover, fails to give proper
meaning to the Clause’s phrase “witnesses against.” A person
is a “witness against” another — in 1791 as today — only if that
person “gives testimony” or testifies “[i]n judicial proceedings
.. . for the purpose of establishing or making proof of some
fact to a court.” 2 Noah Webster, An American Dictionary of
36
the English Language (1828), quoted in Craig, 497 U.S. at 864
(Scalia, J., dissenting). But the Roberts framework transforms
the words “witness against” into any “hearsay declarant [who]
is not present for cross-examination,” Roberts, 448 U.S. at 57,
a definition that includes speakers of everyday utterances such
as spontaneous declarations to their friends or their doctors, as
well as authors of family or business records. This vast
enlargement of the reach of the Clause beyond courtroom
witnesses and persons whose testimony is offered through
custodial examinations, affidavits, and similar materials,
contravenes the ordinary meaning of the word “witness,”
which refers to those whose testimony is used against the
defendant at trial, not to all hearsay declarants.
Structure. The Roberts framework also is at odds with
several established constitutional rules of criminal procedure.
As an initial matter, it has long been an unquestioned rule in
the federal circuit courts that the Confrontation Clause requires
trial judges to strike the testimony of any prosecution witness
who invokes a privilege in order to avoid cross-examination on
matters directly related to his direct testimony.® In such
situations, the pivotal question is whether the witness’s sudden
unavailability “precludes inquiry into the details of his direct
testimony” or merely concerns a collateral issue. United States
v. Cardillo, 316 F.2d 606, 611 (2d Cir. 1963). But under the
Roberts framework, even if the witness directly implicated the
defendant in the crime and refused to answer a single question
on cross-examination, his testimony would still be admissible
if the judge deemed it reliable — a conclusion that the judge
could well reach in light of the respect ordinarily given to trial
testimony. The obvious unfairness of such a result — and its
* See, e.g., United States v. Brooks, 82 F.3d 50, 54-55 (2d. Cir. 1996);
United States v. Berrio-Londono, 946 F.2d 158, 160-61 (ist Cir. 1991);
United States v. , 871 F.2d 616 623-24 (7th Cir. 1989); United States
v. Lord, 711 F.2d 887, 892 (9th Cir. 1983); United States v. Humphrey, 696
F.2d 72, 75 (8th Cir. 1982); United States v. LaRiche, 549 F.2d 1088, 1
97 (6th Cir. 1977); United States v. Newman, 490 F.2d 139, 145 (3d Cir.
1974); United States v. Ginn, 455 F.2d 980, 980 (Sth Cir. 1972); United
States v. Norman, 402 F.2d 73, 76-77 (9th Cir. 1968); United States v.
Smith, 342 F.2d 525, 526 (4th Cir. 1965).
37
stark incompatibility with the structure of the Sixth
Amendment - calls the Roberts framework into serious doubt.
Furthermore, although the same word should mean the
same thing in different constitutional provisions, see, e.g.,
United States v. Kozminski, 487 U.S. 931, 945 (1988); Kosydar
v. National Cash Register Co., 417 U.S. 62, 67 n.5 (1974), and
various constitutional provisions with similar objectives should
compliment each other, the Roberts framework’s enlargement
of the scope of the Confrontation Clause is inconsistent with
other constitutional provisions that concern adverse witnesses
in criminal cases. The Roberts framework, for instance, posits
that any speaker of any hearsay evidence offered against the
accused constitutes a “witness” under the Confrontation
Clause, but surely the government could not satisfy the Treason
Clause — which requires “the Testimony of two Witnesses” to
convict a defendant of treason, U.S. Const. Art. IT, § 3, cl. 1 -
by producing one live witness to say he saw the defendant
commit the defense and that his brother also told him that the
defendant broke the law. See Amar, supra, at 128 (elaborating
on this point). Rather, the Treason Clause plainly requires two
witnesses to give testimony against the defendant in connection
with the government’s prosecution.
Treating the Confrontation Clause as a procedural, rather
than an evidentiary, rule also accords with the rule regarding
witness testimony in the Fifth Amendment’s Self-Incrimination
Clause. That Clause, which prohibits compelling a person “to
be a witness against himself” in a criminal case, U.S. Const.
amend. V (emphasis added), bars the government from
compelling in-court testimony as well as out-of-court
confessions. And if the government obtains an out-of-court
confession in violation of this procedural guarantee, the Clause
bars it from introducing that statement in its case-in-chief at
trial, regardless of whether it interlocks with others’
confessions or appears somehow reliable. See, e.g., Oregon v.
Elstad, 470 U.S. 298, 306 (1985). Abandoning the Roberts
framework would bring the Confrontation Clause back in line
with this related constitutional safeguard.
38
2. The Roberts Framework Breeds Inconsistent
and Anomalous Results.
Because issues regarding the permissibility of introducing
of out-of-court statements against criminal defendants arise
frequently, this Court in Roberts correctly observed that trial
courts and litigators need “certainty and consistency in the
application of the Confrontation Clause.” 448 U.S. at 73 n.12.
The Roberts reliability-based framework accordingly was
designed to “respond{] to the need for certainty in the
workaday world of conducting criminal trials.” 448 U.S. at 66.
Yet the framework in practice has provided anything but.
Instead of treating the Confrontation Clause as a bright-line
rule requiring testimonial statements open to cross-examination
(but that does not apply to ordinary hearsay), Roberts’ concep-
tion of the Clause “makes easy cases hard,” requiring “courts
[to] treat [the Clause] as a complex, amorphous, and technical
expression of principles that are baffling even to lawyers.”
Friedman & McCormack, 150 U. Pa. L. Rev. at 1228. The
inevitable result is that applications of the Confrontation
Clause have become inconsistent and confusing, and they often
generate anomalous results, admitting ex parte testimony (such
as the accomplice’s custodial examination here) that lies at the
core of what the Clause is designed to prohibit.
Courts applying the Roberts framework regularly reach
opposite conclusions concerning reliability in cases with the
same facts.’ They also often reach the same conclusions in
cases with opposite facts.* The “particularized guarantees of
” Compare, e.g., United States v. Castelan, 219 F.3d 690, 695 (7th Cir.
2000) (accomplice accomplice confession unreliable in part because DEA agent told
that “he could help himself by with the agents”)
v. Marshall, 737 N.E.2d 1005, 1009 (Ohio App. 2000)
accomplice confession reliable even though the i
lldbaciinamdntiene
* Compare, e.g., State v. Franco, 950 P.2d 348, _353 (Or. App. 1999)
(accomplice confession relisble because it was in to a
“basic, non- ") with People v. 2002 50594, at
*5 (Cal. App. 2002) (accomplice confession reliable even though police
investigator used leading questions”).
ee
39
reliability” test, in fact, leaves courts so much case-by-case
discretion they have been liable to find that almost anything
evinces reliability, generating puzzling situations in which
someone trying to understand the law learns that both fact x
and fact not x support admitting incriminating testimonial
statements.”
A nonexhaustive list of typical factors courts invoke to
allow the admission of testimonial materials against defendants
includes: (1) the declarant was not under arrest when he gave
the statement, People v. Schutte, 613 N.W.2d 370, 376 (Mich.
2000); (2) the declarant’s statement was against his penal
interest, Holiday v. State, 14 S.W.3d 784, 786-87 (Tex. App.
2000); (3) the statement was voluntary, People v. Thomas, 730
N.E.2d 618, 626 (Ill. App. 2000); (4) the declarant exhibited no
signs of mental instability, Stevens, 29 P.3d at 318; (5) the
declarant’s “demeanor during the interview” was consistent
with truthfulness, Bintz, 650 N.W.2d at 918; (6) the statement
was given “during normal [business] hours,” Jordan, 2002 WL
50594, at *5; (7) the declarant was not under the influence of
any chemical substance when he gave his statement, id.; (8)
the declarant was accompanied by his attorney, People v.
Campbell, 721 N.E.2d at 1225, 1230 (Ill. App. 1999); (9) the
declarant implicated a good friend in his statement, id.; (10) the
statement was given shortly after the events at issue, Farrell,
34 P.3d at 407; (11) the declarant was not agitated when he
implicated the defendant, id. at 407-08; (12) the declarant did
* Compare, e.g., People v. Farrell, 34 P.3d 401, 407 (Colo. 2001)
(accomplice confession reliable because it was given “immediately after”
the events at issue) with Stevens v. People, 29 P3d 305, a _
spose ee ceeeine ee tia oan cate Pek
the murder”), cert. denied, 535 US. 975 (2002); Farrell, "4 3 at 407
(accomplice confession reliable because the
with United States v. Pho ay he.
259 F.3d 229 (4th Cir. 2001) (statement to police reliable because the
portion cert. denied, 535 U.S. 926
sec al Noake ut Commencestth, 579 ta 367, 372 (Va. App. 2003)
custodial statement reliable nhy the declarant had been
with a crime and advised of her Miranda rights) with State v. Bintz,
.W.2d 913, 918 (Wis. App.) (custodial statement reliable because the
Teen coon ache Gl teas too Glo coals Gur Guaieia rev. denied, 653
N.W.2d 891 (Wis. 2002).
40
not mention any animosity toward the defendant, Gabow v.
Commonwealth, 34 S.W.3d 63, 78 (Ky. 2000); (13) the
declarant implicated the defendant “inferentially” instead of
“directly,” id. at 79; (14) the declarant was placed under oath,
United States v. Dolah, 245 F.3d 98, 105 (2d Cir. 2001); (15)
the declarant’s statement was consistent with other witnesses’
trial testimony, United States v. Thomas, 2002 WL 429383, at
*1 (4th Cir.), cert. denied, 535 U.S. 1066 (2002); (16) the
declarant’s statement was given from personal knowledge, id.;
(17) the declarant knew the defendant and his associates were
dangerous, Stevens, 29 P.3d at 316; (18) the declarant was in
custody on charges unrelated to those against the defendant
when he gave his statement, id.; (19) the declarant’s statement
was “given in a formal proceeding,” United States v. Papajohn,
212 F.3d 1112, 1120 (8th Cir. 2000); and, of course, (20) the
declarant’s statement “interlocked” with the defendant’s
custodial statement, J.A. 15-16.
Every single one of these factors could have been present
under the English ex parte affidavit system that the right to
confrontation intended to abolish. Indeed, at least half of them
were present in Raleigh’s prosecution.'° Many of the factors
are sO common or imprecise as to be almost meaningless.
Thus, although the Lilly plurality stated that “[i]t is highly
unlikely that the presumptive unreliability that attaches to
accomplices’ confessions that shift or spread blame can be
10 . , .
England’s attorney wp ttt, yt. yor, {-
Lord Cobhem's cessolial ination was dependable because: (1) “he
would not turn the weapon against his own bosom, and accuse himself to
accuse igh}, Raleigh, 2 How. St. Tr. at 14 — in other words, because it
was against *s penal interest; (2) the confession was not given “in
passion” or out of malice against Raleigh, id. at 14; (3) Cxthon's demannee
was consistent with id.; (4) Raleigh was an “old friend” of
Cobham’s, id. at 18; (5) Cobham’s ession was “voluntary,” id. at 29;
(6) the confession “was not extracted from lord Cobham upon any hopes or
promise of Pardon,” id.; and (7) Cobham’s confession was consistent with
the examinations of other ed co-conspirators, id. at 17. It also is
examination was given see iner, supra,
spy pte Spe ee 4-4
Council. See 1 Stephen, supra, at 333.
41
effectively rebutted when the statements are given under
conditions that implicate the core concerns of the old ex parte
affidavit practice,” 527 U.S. at 137 (emphasis added), it is
perhaps unsurprising that courts in fact deem such statements
reliable quite frequently. A recent study of seventy post-Lilly
appellate decisions involving accomplices’ custodial state-
ments that shift or spread blame to the defendant found that
courts in twenty-five of those cases (over 35%) deemed the
statements sufficiently reliable to satisfy the Confrontation
Clause. Roger W. Kirst, Appellate Court Answers to the
Confrontation Questions in Lilly v. Virginia, 53 Syr. L. Rev.
87, 104-05, 112-38 (2003); see also Pet. for Cert. at 17-18
(collecting decisions along these lines). Courts reached these
results even when the declarant claimed that he served only as
the “lookout” while the defendant committed~a murder,
Marshall, 737 N.E.2d at 1009; when the declarant claimed that
he waited around the corner while the defendant shot two
victims, Taylor v. Commonwealth, 63 S.W.3d 151, 166-67 (Ky.
2001) & Taylor v. Commonwealth, 821 S.W.2d 72, 74 (Ky.
1990); and when the declarant denied any involvement in the
killing at issue and, just as in Lilly, told an interrogating police
officer that his brother did it. State v. Murillo, 623 N.W.2d
187, 188-89, 191-94 (Wis. App. 2001).
The Roberts framework also allows courts to admit other
types of statements at the heart of the “evil to which the
[Confrontation Clause] was directed.” White, 502 U.S. at 365
(Thomas, J., concurring in part and concurring in the
judgment). One federal court of appeals “regularly” allows the
admission of nontestifying accomplices’ plea allocutions
against other defendants. Dolah, 245 F.3d at 105; but see
Garrison v. State, 726 So.2d 1144, 1148 (Miss. 1998). Two
other federal courts of appeals, applying Roberts and Lilly,
have held that a nontestifying witness’s grand jury testimony
that inculpates a defendant is admissible against him at trial
when it satisfies “the equivalent circumstantial guarantees of
trustworthiness” test under Federal Rule of Evidence 807.
Papajohn, 212 F.3d at 1116-20; accord Thomas, 2002 WL
42
429383, at *1-2. Another court has held that a nontestifying
witness’s preliminary hearing testimony may be offered at trial
against defendants who did not have an opportunity to cross-
examine the witnesses. See Bintz, 650 N.W.2d at 918-20.
Without mentioning this Court’s decisions in Pointer, Berger,
or Motes, each of which held that the Confrontation Clause was
violated by the admission of untested preliminary hearing
testimony, the court went straight to the Roberts framework
and held that “prior testimony . . . falls under a firmly rooted
hearsay exception.” Bintz, 650 N.W.2d at 920.
Enough is enough. The Roberts framework is incapable of
bringing consistency or coherence to the Confrontation Clause.
It also subverts the integrity of the Clause by permitting the use
of statements that flout the history, purpose, text, and structure
of the provision. This Court should take this opportunity to
restore the Confrontation Clause to a bright-line rule that
requires that all testimonial statements offered against criminal
defendants be subject to cross-examination. Such a holding
would bring order and respect back to this important
constitutional provision and return it to the straightforward
procedural role it served for hundreds of years before Roberts.
It also would terminate the Confrontation Clause’s improper
meddling with ordinary hearsay law.
II. Even If the Perceived Reliability of Sylvia’s Statement
Did Affect Its Admissibility, Its Introduction Still
Violated the Confrontation Clause Because Its
Interlocking Nature Does Not Establish That It Has
“Particularized Guarantees of Trustworthiness.”
Even if this Court decides to apply the Roberts framework
to this case, it should still reverse the judgment of the
Washington Supreme Court. That Court held that Sylvia’s
custodial statement is “reliable,” and hence admissible, because
it “interlocks” with Petitioner’s custodial statement. J.A. 2.
But this Court’s precedent dictates that the interlocking nature
of an accomplices’ confession is irrelevant to whether that
statement has the reliability, or the “particularized guarantees
of trustworthiness,” Roberts, 448 U.S. at 66, necessary to allow
43
\
its admission over a Confrontation Clause objection. And even
if interlocking evidence were relevant to the particularized
guarantees inquiry, the totality of the circumstances
surrounding Sylvia’s statement still demonstrate that it is not
sufficiently reliable to satisfy the Confrontation Clause.
A. Whether an Accomplice’s Custodial Statement
Interlocks with the Defendant’s Is Irrelevant to the
Particularized Guarantees Inquiry.
The Roberts framework’s “particularized guarantees of
trustworthiness” test permits a hearsay statement to be used
against the accused only when “the declarant’s truthfulness is
so clear from the surrounding circumstances that the test of
cross-examination would be of marginal utility.” Wright, 497
U.S. at 820. This Court’s two most recent decisions applying
that test make it clear that the interlocking nature of an
accomplice’s custodial statement is irrelevant to this test.
In Wright, the prosecution contended that extrajudicial
statements of a child declarant had “particularized guarantees”
in part because they were corroborated by other evidence at
trial. This Court squarely rejected that argument, holding that
“we think the relevant circumstances [to the particularized
guarantees inquiry] include only those that surround the
making of the statement and that render the declarant
particularly worthy of belief.” Jd. at 819 (emphasis added); see
also id. at 826 (corroborating evidence is “irrelevant’”). “To be
admissible under the Confrontation Clause,” this Court
continued, “hearsay evidence used to convict a criminal
defendant must possess indicia of reliability by virtue of its
inherent trustworthiness, not by reference to other evidence at
trial.” Id. at 822 (emphasis added).
The prosecution, put another way by the Wright opinion,
may not “bootstrap” on other evidence to introduce an
incriminating hearsay statement that the Confrontation Clause
otherwise deems inadmissible. Jd. at 823. And lest there be
any doubt that this anti-bootstrapping rule applies across the
board, this Court explicitly dispelled the suggestion that
passages in Cruz and Lee made the “interlocking nature” of
44
accomplices’ confessions relevant to whether they are
admissible against criminal defendants. Cruz “said nothing” to
suggest that such a circumstance was relevant, this Court
“explained, and the Lee Court “rejected the ‘interlock’ theory in
that case.” Wright, 497 U.S. at 823-24 & n.*.
The plurality opinion in Lilly confirms that Wright
prohibits any reference to any kind of interlocking evidence in
assessing a statement’s admissibility under the Confrontation
Clause. In Lilly, the Virginia Supreme Court held that a
nontestifying accomplice’s confession was reliable in part
because of “the correspondence between [the accomplice’s]
account and the accounts of other persons acquired by law
enforcement authorities” and because it was corroborated by
another accomplice’s trial testimony. Lilly v. Commonwealth,
499 S.E.2d 522, 534 (Va. 1998). A four-justice plurality of this
Court, applying Wright, squarely rejected this basis of
establishing reliability, holding that the fact “[tJhat other
evidence at trial corroborated portions of [the accomplice’s]
statements is irrelevant.” Lilly v. Virginia, 527 U.S. at 137
(plurality opinion). (This plurality opinion constitutes the
holding of the Court on this point under the “narrowest
grounds” rule of Marks v. United States, 430 U.S. 188, 193
(1977), because Justices Scalia and Thomas each concurred on
the basis that the Confrontation Clause prohibits the intro-
duction of all nontestifying accomplices’ custodial statements,
regardless of the statements’ reliability.) If evidence that an
accomplice’s statement is corroborated by other accomplices’
statements is irrelevant to the particularized guarantees inquiry,
evidence that an accomplice’s statement is corroborated by the
defendants’ statement must also be irrelevant.
This Court’s anti-bootstrapping principle, in fact, applies
with special force to accomplices’ custodial statements that
interlock with defendants’ statements. In Wright, this Court
stated that when circumstances indicate that “the declarant is
particularly unlikely to be telling the truth, . . . the presence of
evidence tending to corroborate the truth of the statement
would be no substitute for cross-examination of the declarant at
45
trial” because cross-examination “would be highly useful to
probe the declarant’s state of mind when he made the
statements.” Wright, 497 U.S. at 822-23 (second emphasis
added). The scenario of interlocking custodial statements
presents just such a situation. | Accomplices’ custodial
statements that shift or spread blame (as Sylvia’s statement
does) are “presumptively unreliable” because such persons are
inherently motivated to divert police scrutiny away from
themselves. Lee, 476 U.S. at 541; see also Lilly, 527 U.S. at
131 (plurality opinion) (“inherently unreliable”); id. at 146
(Rehnquist, C.J., concurring in the judgment) (portions that
incriminate defendant viewed with “special suspicion”);
Bruton, 391 U.S. at 136 (“inevitably suspect”). Any similarity
between suspected accomplices’ custodial statements and the
defendant’s statements cannot serve as a proxy for the
Confrontation Clause’s demand that testimony be given under
circumstances that ensure that the whole truth will emerge.
Finally, applying Wright’s anti-bootstrapping rule to
interlocking custodial statements accords with the method by
which hearsay law assesses the reliability of out-of-court
statements, which the Roberts framework, in turn, assimilates
into the Confrontation Clause. See Wright, 497 U.S. at 820.
The traditionally recognized exceptions to the hearsay rule are
designed to allow the introduction of statements given under
circumstances that operate as “a practicable substitute for the
ordinary test of cross-examination, . . . if not quite equivalent”
to that test. 5 Wigmore, supra, § 1422. Consequently, “(t]he
circumstantial guarantees of trustworthiness on which the
various specific exceptions to the hearsay rule are based are
those that existed at the time the statement was made and do
not include those that may be added by using hindsight.”
Wright, 497 U.S. at 820 (quotation omitted). In addition, the
declaration sought to be admitted “must be made before
dispute or litigation, so that it was made without bias on
account of the existence of a dispute or litigation which the
declarant might be supposed to favor.” 5 Wigmore, supra, §
1420 (quoting Sugden v. St. Leonards, 1 P.D. 154, 240 (1876)).
46
The interlocking confession rationale violates both of these
requirements. First, it purports to find a hearsay statement
reliable by using hindsight, eg., a post hoc comparison
between the substance of the statement and another person’s
statement. Second, the interlocking confession rationale, by
definition, concerns extrajudicial statements made to
authorities on account of an existing dispute and upcoming
criminal prosecution, potentially aimed at the declarant. Under
these circumstances, both the declarant and the prosecutorial
authorities have obvious motivations to color the past events at
issue in ways that will serve them in the future. See Lee, 476
U.S. at 541 (accomplices giving custodial confessions have “a
strong motivation to implicate the defendant and to exonerate
[themselves}”) (quotation omitted); Bruton, 391 U.S. at 136 |
(same); Brief for United States at 23-24, United States v. Inadi,
475 U.S. 387 (1986) (No. 84-1580) (discussing parties’
interests when recording ex parte testimony, such as
accomplice confessions). This inherent risk of distortion is so
great that one simply cannot say that the interlocking nature of
such a statement may later indicate that it is “free enough from
the risk of inaccuracy and untrustworthiness, so that the test of
cross-examination would be a work of supererogation.”
Wigmore, supra, § 1420, quoted in Wright, 497 U.S. at 819.
B. Even if Evidence of Interlock Were Relevant to the
Particularized Guarantees Inquiry, the Totality of
the Circumstances Surrounding Sylvia’s Statement
Still Demonstrate That It Is Not Sufficiently
Reliable To Satisfy the Confrontation Clause.
The Washington Supreme Court did not simply hold that
the interlocking nature of Sylvia’s custodial statement
suggested that it was reliable; it ruled that this fact alone
automatically “satisfie[d] the requirement of reliability under
the confrontation clause.” J.A. 19 (emphasis removed). The
Court thus deemed it irrelevant that the Washington Court of
Appeals had listed several other circumstances indicating that
Sylvia’s statement was unreliable.
47
This treatment of the interlocking nature of the statements
as a reliability trump card squarely conflicts with this Court’s
precedent. In Wright, this Court held in no uncertain terms that
“the ‘particularized guarantees of trustworthiness’ required for
admission under the Confrontation Clause must . . . be drawn
from the totality of the circumstances that surround the making
of the statement and that render the declarant particularly
worthy of belief.” 497 U.S. at 820 (emphasis added).
Accordingly, even if evidence of “interlock” is somehow a
relevant circumstance “surround[ing] the making of the
statement,” id., one must also consider other such circum-
stances in assessing whether the statement is sufficiently
reliable to satisfy the Confrontation Clause."
When the totality of the circumstances surrounding
Sylvia’s statement are considered, it becomes clear that the
statement is not so trustworthy and comprehensive that cross-
examination would have been of marginal utility. First and
foremost, it bears repeating that Sylvia made the statement at
issue to prosecutorial authorities at a police department while
in custody for suspected involvement in a felony. The police
told her that it “depend[ed] how the investigation continue[d]”
as to whether she would be “detained more at this point or
not.” J.A. 81. Portions of Sylvia’s resulting responses to
police questioning related exclusively to Petitioner’s actions
'' This Court’s decision in Cruz v. New York, 481 U.S. 186 (1987), also
demonstrates even if evidence of interlock is relevant, other factors must
bear on the reliability of accomplices’ custodial statements. The question
presented in that case was whether a nontestifying codefendant’s confession
incriminating the defendant, where it “is not directly admissible a against the
defendant,” may be introduced at a joint trial when it “interlocks” with the
defendant’s cunediel statement — a question this Court answered in the
negative. 481 U.S. at 188-93. If accomplices’ confessions were
automatically admissible against defendants whenever they interlock with
defendants’ custodial statements, then the issue in Cruz — which assumed
that the interlocking confession was not admissible against the defendant —
would have been nonsensical. The ise that accomplices’ interlocking
confessions can be inadmissible against defendants and this Court’s ree
that the interlocking confession in that case was, in fact, inadmissible, id. a
193-94, confirm that the Confrontation Clause, at a minimum, ones
courts to consider factors beyond interlocking evidence. See Wright, 497
U.S. at 823 n.* (discussing Cruz).
48
and placed responsibility for the alleged assault on his
shoulders. And Sylvia was never cross-examined in any
manner by any representative of Petitioner.
These facts alone require that Sylvia’s statement be
viewed with “special suspicion,” Lilly, 527 U.S. at 146
(Rehnquist, C.J., concurring in the judgment) (quoting Lee, 476
U.S. at 541), and make it “highly unlikely” that Sylvia’s
statement is sufficiently reliable to satisfy the Confrontation
Clause. Lilly, 527 U.S. at 137 (plurality opinion). As this
Court explained in Lee, “[d]jue to [a codefendant’s] strong
motivation to implicate the defendant and to exonerate
[herself], a codefendant’s statement about what the defendant
said or did are less credible than ordinary hearsay evidence.”
476 U.S. at 541 (quotation omitted). This reasoning obviously
applies with particular force when, as here, the declarant is a
potential accomplice who realizes that she may or may not be
charged with a crime depending in part on what she tells the
police. See Lilly, 527 U.S. at 138 (plurality opinion) (“When a
suspect is in custody for his obvious involvement in serious
crimes, his knowledge that anything he says may be used
against him militates against depending on his veracity.”).
But the fact that Sylvia’s statement constitutes a suspected
accomplice’s ex parte custodial statement is just one of several
circumstances that severely undermine its reliability. Sylvia’s
statement described exclusively past events, thus lacking the
“spontaneity” that sometimes suggests reliability. Wright, 497
U.S. at 821. Worse yet, several aspects of her physical and
mental condition impeded her ability to record and relay
reliable impressions of the events she observed. Sylvia
acknowledged during her interrogation that she had been
“pretty intoxicated” while at Lee’s apartment, J.A. 88, a
circumstance thai “militates against” reliable recollections. See
Lilly, 527 U.S. at 139 (plurality opinion). She also stated that
she was “like in shock” during the stabbing, J.A. 134, which
also would have impaired the accuracy of her observations and
perhaps her memory as well. See Wright, 497 U.S. at 821
(indicating that altered “mental state” undermines reliability).
49
The manner in which the police interrogated Sylvia also
undercuts the reliability of her statement. The plurality in Lilly
held that the accomplice’s custodial statement there was
unreliable in part because he “was primarily responding to the
officers’ leading questions.” 527 U.S. at 139; see also
Blackstone, supra, at *373 (describing danger that examiner in
ex parte examinations will “dress[{] up” the testimony in “his
own forms and language” to “make the witness speak what he
never meant”). The same is true here. As the Washington
Court of Appeals noted, Sylvia’s custodial statement “consisted
of answers to specific questions,” J.A. 29, not of a lengthy
narration or even a conversational give-and-take. See also J.A.
124-41 (transcript of statement). Indeed, on the critical issue of
whether Petitioner acted in self-defense, the investigating
officer asked Sylvia a leading question — whether Lee did
anything “to fight back from this assault . . . after he was
stabbed” J.A. 137 — that explicitly assumed Petitioner assaulted
Lee before Lee attacked him. This question and others indicate
that the police, as in Lee, “having already interrogated [the
eventual defendant], no doubt knew what they were looking
for” in examining his apparent accomplice. 476 U.S. at 544.
While a witness’s “consistent repetition” under these
circumstances might to some extent mitigate the effects of such
questioning, see Wright, 497 U.S. at 821, Sylvia gave two
inconsistent statements within about four hours, further
indicating a lack of truthfulness. She first claimed, for
instance, that Lee sexually assaulted her that day, J.A. 89-93,
but she later maintained that he assaulted her several weeks
before. J.A. 130-31. In addition, she first claimed that Lee
invited her and Petitioner over to his apartment “to go
drinking,” J.A. 86, but she later maintained that they went over
to collect a debt and to confront Lee about sexually assaulting
her. J.A. 133. She also claimed initially that she did not see
the stabbing because she was behind a wall. J.A. 93. After
several hours in the stationhouse, however, she said that she
saw Petitioner stab Lee, J.A. 134, but then added that she “shut
[her] eyes” during the stabbing and “didn’t really watch.” Jd.
50
The latter comments, in fact, generate concern not only
because they are inconsistent with her earlier remarks but also
because they show, as the Washington Court of Appeals
observed, that “[c]ross-examination could reveal that [Sylvia]
lacked knowledge of what happened.” J.A. 3U. At the very
best, Sylvia claimed that she “didn’t really watch” the critical
events upon which Petitioner’s self-defense claim turned. J.A.
134. It thus is almost impossible to imagine a cross-
examination of Sylvia proving to be “of marginal utility,”
Wright, 497 U.S. at 820, even if its only purpose was to
undercut the State’s claim that her testimony strongly refuted
Petitioner’s claim of self-defense.
Finally, the part of Sylvia’s statement that the Washington
Supreme Court held “interlocked” with Petitioner’s did so only
in the sense that “both of the Crawfords’ statements are
ambiguous as to whether Lee ever actually possessed a
weapon. . . . ‘[NJeither Michael or Sylvia clearly stated that
Lee had a weapon in hand from which Michael was simply
defending himself.’” J.A. 18 (quoting dissent from court of
appeals). But ambiguity is hardly an indicator of reliability,
especially when the statement concerns a crucial factual matter
that is presumably either so or not so. As this Court remarked
in Lee, when an accomplice’s statements bearing “to any
significant degree on the defendant’s participation in the crime
are not thoroughly substantiated by the defendant’s own
confession, the admission of the statements poses too serious a
threat to the accuracy of the verdict to be countenanced by the
Sixth Amendment.” 476 U.S. at 545. Since the issue whether
Lee was threatening to harm Petitioner lies at the heart of this
case and “it is unclear from Sylvia’s statement when, if ever,
Lee possessed a weapon,” J.A. 18, Sylvia’s statement’s
confluence with Petitioner’s in that regard does not enhance its
trustworthiness to the level that the Roberts framework requires
to allow its admission against Petitioner.
CONCLUSION
For the foregoing reasons, the judgment of the Washington
Supreme Court should be reversed.
July 24, 2003
Respectfully submitted,
BRUCE E. H. JOHNSON
JEFFREY L. FISHER
Counsel of Record
SCOTT CARTER-E!.DRED
DAVIS WRIGHT TREMAINE LLP
2600 Century Square
1501 Fourth Avenue
Seattle, WA 98101-1688
(206) 622-3150
Attorneys for Petitioner
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