Amicus Curiae Brief — Crawford v. Washington

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MOTION FILED y

JUL 9 4 9803 No. 02-9410

IN THE

Supreme Court of the United States

, 4

MICHAEL D. CRAWFORD

Petitioner,

WASHINGTON,

Respondent.

On Writ of Certiorari

to the Supreme Court of Washington

MOTION FOR LEAVE TO FILE AND BRIEF AMICUS

CURIAE OF LAW PROFESSORS SHERMAN J. CLARK,

JAMES J. DUANE, RICHARD D. FRIEDMAN, NORMAN

GARLAND, GARY M. MAVEAL, BRIDGET

MCCORMACK, DAVID A. MORAN, CHRISTOPHER B.

MUELLER, AND ROGER C. PARK, IN SUPPORT OF

PETITIONER

David A. Moran Richard D. Friedman

Of Counsel Counsel of Record

471 West Palmer 625 South State Street

Detroit, Michigan 48202 Ann Arbor, Michigan 48109

(313) 577-4829 (734) 647-1078

No. 02-9410

IN THE

SUPREME COURT OF THE UNITED STATES

MICHAEL D. CRAWFORD

Petitioner,

WASHINGTON,

Respondent.

MOTION FOR LEAVE TO FILE BRIEF AM/JCUS CURIAE

OF LAW PROFESSORS SHERMAN J. CLARK, JAMES J.

DUANE, RICHARD D. FRIEDMAN, NORMAN GARLAND,

GARY M. MAVEAL, BRIDGET MCCORMACK, DAVID A.

MORAN, CHRISTOPHER B. MUELLER, AND ROGER C.

PARK, IN SUPPORT OF PETITIONER

Pursuant to Rule 37.2(b), Sherman J. Clark, James J.

Duane, Richard D. Friedman, Norman Garland, Gary M.

Maveal, Bridget McCormack, David A. Moran, Christopher B.

Mueller, and Roger C. Park respectfully move this Court for

leave to file the attached brief amicus curiae in support of

petitioner. Petitioner has granted consent, but respondent has

refused consent.

This case raises important questions about the meaning of

the Confrontation Clause of the Sixth Amendment to the

Constitution, which is a central aspect of our criminal justice

system. In particular, the second Question Presented in the

petition for certiorari suggests that the currently prevailing

framework of doctrine under the Clause be reconsidered, to be

replaced by one limiting the scope of the Clause to statements

that are testimonial in nature but prescribing unequivocally that

such statements may not be introduced against an accused

unless he has had an opportunity to confront the maker of the

statement. Amici are law professors who have had considerable

experience dealing with the Confrontation Clause, variously

writing, teaching, and litigating about it. We believe that a

reconceptualization along the lines proposed by petitioner

would be a great improvement in the law. Our imterest in this

case is not to support either prosecution or defemse — in some

settings the structure we propose would favor ome side and in

some settings the other — but to assist the placement of the

Confrontation Clause on a proper footing, as expressing a rather

narrow but hard-edged right.

Sherman J. Clark is Professor of Law at the University of

Michigan Law School. He is the author of An Accuser-

Obligation Approach to the Confrontation Clause, 81 NEB. L.

REV. 1258 (2003), which supports and offers an.explanation for

the “testimonial” approach to the Confrontation Clause.

James J. Duane is Professor at Regent University School

of Law. He teaches Evidence and Triak Advocacy, among other

courses. He is co-author, with Glen Weissenberger, of

FEDERAL EVIDENCE (4" ed. 2004). Among the topics related to

confrontation on which be has written are conspirator

statements and declarations against interest.

Richard D. Friedman is Ralph W. Aigler Collegiate

Professor of Law aa the University of Michigan Law Schoui

He has written extensively on the Confrontation Clause, and has

advocated the testimonial approach to that Clause in several

articles. ‘He is general editor of THE NEW WIGMORE: A

TREATISE ON EVIDENCE, and author of THE ELEMENTS OF

EVIDENCE (2d ed. 1998).

Norman M. Garland, Professor, Southwestern University

School of Law, has been teaching Evidence for 32 years, first at

te?

Northwestern University School of Law and then at

Southwestern. He has authored numerous books and articles

dealing with evidence, criminal law, and criminal procedure.

Gary M. Maveal is Associate Professor, University of

Detroit Mercy School of Law, and has taught Evidence for 14

years. Previously, he was an Assistant United States Attorney

for the Eastern District of Michigan.

Bridget M. McCormack is Associate Dean for Clinical

Affairs and Clinical Professor of Law at the University of

Michigan Law School. She is the co-author with Prof.

Friedman of Dial-/n Testimony, 150 U.PA.L. REV. 1171 (2002),

which advocates the testimonial approach.

David A. Moran is Assistant Professor of Law at Wayne

State University Law School. Previously, he was an attorney

with the Michigan State Appellate Defender’s Office. In that

capacity, he litigated several cases highlighting the difficulties

that state trial courts have in applying the Roberts framework .

See, e.g., Bulls v. Jones, 274 F.3d 329 (6"Cir. 2001) (granting

habeas relief where state trial court admitted non-testifying co-

defendant's police statement as substantive evidence against

defendant). He and Prof. Friedman are working together on a

volume, part of THE NEW WIGMORE, dealing with some aspects

of the law of hearsay and confrontation.

Christopher B. Mueller is the Henry S. Lindsley Professor

of Procedure and Advocacy at the University of Colorado

School of Law. For the last 30 years, he has taught and written

about evidence law, often with Laird C. Kirkpatrick (now Dean,

University of Oregon School of Law). Among the works by

Mueller and Kirkpatrick are FEDERAL EVIDENCE (2d ed. 1994)

(5 volumes), EVIDENCE (3d ed. 3002), MODERN EVIDENCE (2nd

ed. 1999), and EVIDENCE UNDER THE RULES (4th ed. 2000).

Professor Mueller has also written specifically about various

aspects of hearsay, including difficulties in applying the

doctrine to statements by alleged co-offenders. See Tales Out

of School. Spillover Confessions and Against-interest

Statements Naming Others, 55 UNiv. MIAMI L. REV. 929

(2001); The Federal Coconspirator Exception: Action,

Assertion, and Hearsay, 12 HOFSTRA L. REV. 232 (1984).

Roger C. Park holds the James Edgar Hervey Chair in

Litigation at Hastings College of the Law, University of

California. He was a member of the faculty of the University of

Minnesota Law School for more than twenty years. Many of

his law review articles focus on hearsay evidence, some of them

from an empirical standpoint. Among his numerous books on

evidentiary topics is CASES AND MATERIALS ON EVIDENCE (9"

ed. 1999, with Jon R. Waltz).

Because we believe that current doctrine undervalues the

significance of the confrontation right in our constitutional

scheme, and we believe this case offers an opportunity to

redress the situation, we respectfully seek leave to file the

attached brief amicus curiae.

Bothy

D hak

Richard D. Fnedman

Counsel of Record

625 South State Street

Ann Arbor, Michigan 48109

(734) 647-1078

David A. Moran

Of Counsel

471 West Palmer

Detroit, Michigan 48202

(313) 577-4829

July 24, 2003

—

- tee Alt.

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTERESTS OF AMICI CURIAE

STATEMENT OF THE CASE

SUMMARY OF ARGUMENT

ARGUMENT

I. THE TEXT OF THE CONFRONTATION

CLAUSE SUPPORTS A TESTIMONIAL

APPROACH TO THE CLAUSE, AND NOT

THE ROBERTS FRAMEWORK.

Il. THE HISTORY UNDERLYING THE

CONFRONTATION CLAUSE SUPPORTS

A TESTIMONIAL APPROACH TO THE

CLAUSE, AND NOT THE ROBERTS

FRAMEWORK.

Ill. THE TESTIMONIAL APPROACH

REFLECTS VALUES WARRANTING

CONSTITUTIONAL PROTECTION,

AND THE ROBERTS FRAMEWORK

DOES NOT.

IV. AS COMPARED TO THE ROBERTS

FRAMEWORK, THE TESTIMONIAL

APPROACH GIVES BETTER GUIDANCE

TO THE LOWER COURTS, IS MORE

PRACTICAL TO IMPLEMENT,

AND IS LESS SUSCEPTIBLE TO

MANIPULATION.

CONCLUSION

TABLE OF AUTHORITIES

FEDERAL CASES

Barber v. Page, 390 U.S. 719 (1968) 21,24

Bourjaily v. United States. 22, 24, 25-26

483 U.S. 171 (1987)

California v. Green, 3, 14,21, 23

399 U.S. 149 (1970)

Coy v. lowa, 487 U.S. 1012 (1988) 15, 16, 21

Douglas v. Alabama, 380 U.S. 415 (1965) 21, 23, 25

Dutton v. Evans, 400 U.S. 74 (1970) 22

Ford v. Wainwright, 477 U.S. 499 (1986) 14

Green v. United States, 355 U.S. 184 (1957) 23

Idaho v. Wright, 497 U.S. 805 (1990) 19, 22, 27

Kentucky v. Stincer, 482 U.S. 730 (1987) 14

Lee v. Illinois, 1, 14, 16, 21, 23,

476 U.S. 530 (1986) 25, 26, 27, 28

Lilly v. Virginia, 1,6, 11, 14, 18, 21,

527 U.S. 116 (1999) 23, 25, 27, 28, 29

Maryland v. Craig. 8, 14, 15, 16, 21, 23

497 U.S. 836 (1990)

iV Vv

Mancusi v. Stubbs, 408 U.S. 204 (1972) 21, 25 OTHER CASES

Mattox y. United States, 156 U.S. 237 (1895) 16, 21, 25 “ A tr an sole. 98 tne fn Be.

Ohio v. Roberts. 1.5.6. 11. 14, 91 Eng. Rep. 1387 (K.B. 1696)

a damaceaciiae Saidi v. France, 17 E.H.R.R. 251 (1993)

a ee eer ” Case of Thomas Tong, 84 Eng. Rep. 1061

Pointer v. Texas, 380 U.S. 400 (1965) 21, 23, 25 (K.B. 1662),

Silverstein v. Chase, 260 F.3d 142 (2d Cir. 2001) 29 FEDERAL RULES

Tennessee v. Street, 471 U.S. 409 (1985) 19, 23 Fed. R. Evid. 801(c)

Teegued v Borg, 828 F.2d 571 (9th Cir. 1987) 17 Fed. R. Evid. 801(d)(2)(E)

United States v. Inadi, 475 U.S. 387 (1986) 6, 22, 26, 27 Fed. R. Evid. 804(b)(2)

United States v. Owens, 484 U.S. 554 (1988) 8, 21-22, 23 Fed. R. Evid. 804(b)(6)

United States v. Salerno, 805 U.S. 317 (1992) 15 SECONDARY SOURCES

ie | Berger, Adolf, Encyclopedic Dictionary of

United States v. Wade, 388 U.S. 218 (1967) 18 Reman Law, 43. Pt. 2 Taare. Ans. Pra. SOC.

Watkins v. Sowders, 449 U.S. 341 (1981) 14 335, 735 (1953)

White v. Illinois, 502 U.S. 346 (1992) 6, 14, 22, 26, 27 Clark, Sherman J., An Accuser-Obligation

Approach to the Confrontation Clause,

Williamson v. United States, 512 U.S. 594 (1994) 29 81 Nes. L. REv. 1258 (2003)

Friedman, Richard D., Confrontation and

the Definition of Chutzpa,

31 ISRAEL L. REV. 506 (1997)

In re Winship, 358 361-64 (1970) 15 )

Friedman, Richard D., Confrontation:

The Search for Basic Principles,

86 GEO. L.J. 1011 (1998)

Friedman, Richard D., The Conundrum of

Children, Hearsay, and Confrontation,

65 LAW & CONTEMP. PROBS. 243

(Winter 2002)

Friedman, Richard D., & McCormack,

Bridget, Dial-In Testimony, 150 U. PA.

L. REV. 1171 (2002)

Jonakait, Randolph N., Restoring the Confron-

tation Clause to the Sixth Amendment,

35 UCLA L. REV. 557 (1988)

Kirst, Roger W., Appellate Court Answers

to the Confrontation Question in Lilly v.

Virginia, 53 Syr. L. REV. 87 (2003)

LEMPERT, RICHARD O.,GROSS, SAMUELR. &

LIEBMAN, JAMES S., A MODERN APPROACH

TO EVIDENCE (3d ed. 2000)

Levie, Joseph H., Hearsay and Conspiracy,

52 MICH. L. REV.1159 (1954)

MUELLER, CHRISTOPHER B., &

KIRKPATRICK, LAIRD C. , FEDERAL

EVIDENCE (2d ed. 1994)

OXFORD ENGLISH DICTIONARY(2d ed. 1989)

Posner, Richard A., An Economic Approach

22,

, 22

Vii

to the Law of Evidence, 51 STAN. L. REV.

1477 (1999)

Swift, Eleanor, Smoke and Mirrors: The Failure

of the Supreme Court's Accuracy Rationale in

White v. Illinois Requires a New Look at Con-

frontation, 22 CAP. U. L. REV. 145 (1993)

MISCELLANEOUS

Book of Acts, c. 25

Book of Deuteronomy, c. 19

European Convention on Human Rights,

Articles 6(1) and 6(3)(d)

Statements of Scalia, J., 535 U.S. 1159, and

of Breyer, J., dissenting, 535 U.S. 1162,

in conjunction with the decision not

to transmit to Congress a proposed amend-

ment to Fed. R. Crim. P. 26 (2002).

18,

INTERESTS OF AMICI CURIAE'

The interest of amici is set forth in the accompanying

motion for leave to file this brief amicus curiae.

STATEMENT OF THE CASE

We adopt the statement of the case in the petitioner’s brief,

with these additional comments. Like Lee v. //lindis, 476 U.S.

530 (1986), and Lilly v. Virginia, 527 U.S. 116 (1999), this case

is an example of what might be called station-house testimony.

Sylvia Crawford, the petitioner’s wife, made a tape-recorded

statement to investigating officers at the police station on the

night of the alleged crime. Sylvia was unwilling to testify at

trial against her husband, and was deemed by all parties to be

unavailable as a witness. Over petitioner’s objection, Sylvia’s

statement was introduced, and petitioner was convicted. Amici

file this brief to address the second Question Presented in the

petition for certiorari:

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.

' No counsel for any party authored any part of this brief. Part

of the cost of preparing and submitting this brief was paid for by

research funds provided by the University of Michigan Law School

to Richard Friedman and under his control. The brief does not

necessarily reflect the views of that Law School or of any of its

faculty other than amici curiae. Except as just noted, no persons or

entities other than the amici curiae made any monetary contribution

to the preparation or submission of this brief.

SUMMARY OF ARGUMENT

By granting certiorari in this case, the Court has created an

opportunity to replace an unsatisfactory conception of the

Confrontation Clause with one that is historically well

grounded, textually faithful, intuitively appealing, and

straightforward in application. This conception confines the

Clause to its proper sphere and at the same time makes clear the

place of the confrontation right as one of the fundamental

cornerstones of our system of criminal justice. Adopting this

conception will also make the law far easier than current

doctrine for the lower courts to follow, because the

Confrontation Clause decisions of this Court will be explained

by reference to a robust, easily understood principle with deep

roots in the Anglo-American tradition and, indeed, throughout

Western jurisprudence. This principle is that the testimony of

a witness may not be used against an accused unless it was

given under the conditions prescribed for testimony, among

which are that it be under oath or affirmation, that it be given in

the presence of the accused, and that it be subject to cross-

examination.

Implementation of the principle requires recognition that

a Statement may be testimonial in nature even though it was not

made under the conditions prescribed for testimony. Thus, a

statement made knowingly to authorities accusing another

person of a crime is clearly a testimonial statement — even

though it was made without oath or cross-examination and in

the presence of no one but the authorities. If a report by the

authorities of a statement made in this way may be considered

by the trier of fact, then a system has been created that tolerates

the giving of testimony behind closed doors. The very point of

the Confrontation Clause was to prevent the creation of such a

system. That a statement was made absent the conditions

required by the system for testimony does not render the

statement non-testimonial in nature — rather, if the statement

was testimonial in nature, the absence of those conditions

renders the testimony intolerable. Put another way, the

Confrontation Clause gives the accused more than a right to

confront “all those who appear and give evidence at trial."

California v. Green, 399 U.S. 149, 175 (1970) (Harlan, J..

concurring). Its primary impact is to ensure that prosecution

witnesses do give their evidence at trial, or if necessary at a

pretrial proceeding at which the accused is able to confront

them.

Like the right to counsel and the right to a jury trial, the

right to confront witnesses is subject to waiver, and it is also

subject to forfeiture, for the accused has no ground to complain

if his own wrongdoing caused his inability to confront the

witness. Like those other rights, the right to confront adverse

witnesses can . nd should be applied unequivocally. That is, if

the statement is a testimonial one and the right has not been

waived or forfeited, then the right should apply without

exceptions. This simple approach is possible because the scope

of the right, properly conceived, is quite narrow. It does not

reach out-of-court statements in general, but only those that are

testimonial in nature.

Under the currently prevailing doctrine, by contrast, the

scope of the Clause is extremely broad: Any hearsay statement

made by an out-of-court declarant is presumptively excluded by

the Clause. A flat exclusionary rule of such breadth would be

impractical, and so the doctrine exempts from the presumptive

rule many statements that are deemed to be reliable —

purportedly so reliable that cross-examination would be of little

value. Statements that fit within “firmly rooted” hearsay

exceptions are deemed reliable without more. Just which of the

many hearsay exceptions — a term used in this brief to cover

both exceptions proper to the rule against hearsay and

exclusions from the definition of hearsay — are considered to be

“firmly rooted” is a question that this Court has only partially

resolved. On an ad hoc basis, the Court has declared hearsay

exceptions, or parts of them, either within that category or not,

but the Court has never offered a clear set of criteria for

determining what makes an exception “firmly rooted.” If a

statement does not fit within a “firmly rooted “ exception, it

may yet satisfy the reliability requirement, if the statement is

deemed to have “individualized guarantees of trustworthi:

This standard is heavily fact-bound and demands case-by -. use

review. Even if a statement is deemed reliable, the

Confrontation Clause may bar its use if the declarant is

available to be a witness. As with reliability, the criteria for the

unavailability requirement are unclear. If the statement falls

within the exception for former testimony, the declarant must

be unavailable or the Clause will preclude its use; if the

statement falls within the exceptions for spontaneous

declarations, statements made for purposes of medical

treatment, and conspirator declarations, unavailability is not

required; in other contexts it is not yet known whether the

unavailability requirement applies.

This framework is unpredictable and over-complicated,

and so it too frequently yields very bad results in the lower

courts. The framework is capable of producing good results;

indeed, adopting the approach proposed in this brief would not

require the Court to overrule any of its Confrontation Clause

decisions. But the existing framework reaches good results

consistently only if it is manipulated. In this respect, it

resembles the Ptolemeian astronomical system. That system,

too, was capable of yielding good results, but only if it was

manipulated and made ever more complex to ensure that its

results matched empirical observations. Ultimately, then, the

system failed to explain coherently the phenomenon it was

trying to describe. Because the system’s predictive power was

thus limited, it became necessary to adopt a new organizing

principle. In the confrontation context, too, a new organizing

principle is necessary: rather than treating the Confrontation

Clause as a generalized attempt to exclude unreliable hearsay

—_—— ----—--—— - -

evidence, the Court should recognize that the Clause is a

guarantee that /estimony offered against an accused must be

given in the manner prescribed for centuries, in the presence of

the accused and subject to cross-examination.

ARGUMENT

1. THE TEXT OF THE CONFRONTATION CLAUSE

SUPPORTS A TESTIMONIAL APPROACH TO THE

CLAUSE, AND NOT THE ROBERTS

FRAMEWORK.

We begin with the text of the Confrontation Clause. It

provides in simple terms:

In all criminal prosecutions, the accused shall enjoy the

right . . . to be confronted with the witnesses against him.

Now compare how this language squares respectively with

the prevailing framework established by Roberts and with the

testimonial approach proposed here. The prevailing framework

was laid out by Roberts, 448 U.S. at 66. As subsequently

modified, it has these principal elements:

1. “/W]hen a hearsay declarant is not present for cross-

examination at trial,” use of the hearsay declaration is

presumptively barred by the Confrontation Clause. The basic

definition of hearsay, as expressed in Federal Rule of Evidence

801(c), is “a statement, other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to

prove the truth of the matter asserted.” The text of the

Confrontation Clause does not refer to hearsay, however, and

nothing in it suggests that its scope is as broad as the definition

of hearsay. A person who makes a statement in the ordinary

course of her affairs, without any reasonable anticipation of

litigation, is a hearsay declarant if the statement is later offered

at trial to prove the truth of what it asserts, but it would be an

unnatural reading to conclude that this makes her a “witness”

within the meaning of the Confrontation Clause.

2. Even though it is hearsay, an out-of-court statement

may be admitted against an accused (subject to the possible

applicability of an unavailability requirement) if it is

sufficiently reliable. Under this doctrine, statements are deemed

reliable if the evidence either “falls within a firmly rooted

hearsay exception" or “contains ‘particularized guarantees of

trustworthiness’ such that adversarial testing would be

expected to add little, if anything, to the statements’ reliability.”

Lilly, 527 U.S. at 124-25, quoting in part Roberts, 448 U.S. at

66. Nothing in the text of the Confrontation Clause, however,

suggests that if a statement falls within the scope of the Clause

its use against the accused may yet be allowed because of a

judicial determination that the statement is reliable. The Clause

says that in a// criminal prosecutions the accused shall enjoy the

right to be confronted with ‘he witnesses against him, not

simply those whom judges deem sufficiently unreliable to

warrant cross-examination. The Clause contains no hint of a

reliability test, and no suggestions of exceptions to its

categorical bar.’

In short, the Roberts framework depends on a set of

concepts — hearsay, reliability, and exceptions — none of which

> As originally articulated by Roberts, the framework also

generally precluded use of hearsay unless the declarant was

unavailable to testify at trial. Subsequent cases have cut back on this

requirement. It applies to former testimony, as in Roberts itself, it

has been held not to apply to statements falling within the exceptions

for conspirator statements, United States v. Inadi, 475 U.S. 387

(1986), spontaneous declarations, and statements made in the course

of receiving medical care, White v. Illinois, 502 U.S. 346 (1992). In

other contexts its applicability is unclear.

is supported by the text of the Confrontation Clause.

In contrast, that text squares very well with the testimonial

approach, the core of which may be expressed as follows:

Use against an accused of the statement of a witness — that

is, a Statement that is testimonial in nature — violates a

right of the accused unless the accused has or has had an

adequate opportunity to confront the witness.’

The key aspect of this approach is equating a witness with a

person who makes a testimonial statement. But that is a very

natural reading. The Latin for witness is festis. Adolf Berger,

Encyclopedic Dictionary of Roman Law, 43, Pt. 2 TRANS. AM.

PHIL. SOc. 335, 735 (1953). That word shares a root with

testimonium, the core meaning of which is “the testimony of a

witness.” /d And that, of course, is the source of the English

word testimony. The derivation appears to be through the Old

French, 17 THE OXFORD ENGLISH DICTIONARY 833 (2d ed.

1989); thus, in the modern French witness is témoin and

testimony is /émoinage.

Of course, to give this approach life, it is necessary to

invest the word festimonial with meaning. As discussed in Part

IV, there is some ambiguity about the edges of the word’s

meaning.’ For now, though, it suffices to say that a statement

* A subsidiary principle is that if the accused has had an

adequate opportunity to confront the witness at an earlier time but,

without fault of the prosecution, the witness is unavailable to testify

at trial, then the witness's prior statement may be used. Part IV

contrasts this principle and the unsatisfactory method by which the

prevailing framework treats unavailability.

* The same can be said about the term confront. In most cases,

the meaning is clear: The witness must testify in the presence of the

accused, subject to cross-examination. Questions such as when or

that is made with the reasonable anticipation that it will be used

in a criminal prosecution should be considered testimonial.

while a statement that is made in the ordinary course of affairs,

with no prospect of evidentiary use in the offing, is not

testimonial. —

The text of the Confrontation Clause is important in .nis

context not only because of its intrinsic authority but also

because. as we will now show, it expresses a fundamental

principle with deep historical roots: A witness may not testify

against an accused unless she confronts him with the testimony.

ll. THE HISTORY UNDERLYING THE

CONFRONTATION CLAUSE SUPPORTS A

TESTIMONIAL APPROACH TO THE CLAUSE,

AND NOT THE ROBERTS FRAMEWORK.’

If an adjudicative system is rational, then it must rely in

large part on the testimony of witnesses and prescribe the

conditions under which they may testify. For many systems,

one such condition is that testimony must be given under oath.

Another common condition, characteristic of the common law

system but not limited to it, is that testimony of a prosecution

witness must be given in the presence of the accused, subject to

questioning by him or on his behalf. The ancient Hebrews

required confrontation, Deut. 19:15-18, as did the Romans. A

whether the witness and the accused may be in different rooms but

connected by a video transmission, see, e.g., Maryland v. Craig, 4°7

U.S. 836 (1990), or whether the accused’s opportunity to cross-

examine was adequate, see, e.g., United States v. Owens, 484 U.S.

554 (1988), are not presented by the current case.

> A more extensive historical discussion, with fuller citations, is

in Richard D. Friedman & Bridget McCormack, Dial-Jn Testimony,

150 U.PA. L. REV. 1171, 1202-09 (2002).

Roman governor, Festus, pronounced: “It is not the manner of

the Romans to die before the accused has met his accusers face

to face. and has been given a chance to defend himself against

the charges.” Acts, 25:16.

Once the irrational methods of medieval adjudication, such

as trial by ordeal and by battle, withered away, Western legal

systems developed different approaches to testin.ony.

Continental systems tended to take testimony on written

questions — behind closed doors and out of the presence of the

parties — for fear that the witnesses would be coached or

intimidated. By contrast, beginning in the 15" century and

continuing for centuries afterwards, numerous English judges

and commentators — John Fortescue, Thomas Smith, Matthew

Hale, and William Blackstone among them — praised the open

and confrontational style of the English criminal trial. In a

celebrated 16" century description, for example, Smith spoke

approvingly of an “altercation” between accuser and accused.

Nearly two centuries later, Sollom Emlyn proclaimed: “In other

Countries, the Witnesses are examin’d in private, and in the

Prisoner’s Absence; with us, they are produced face to face, and

deliver their Evidence in open Court, the Prisoner himself being

present, and at liberty to cross-examine them.” And later in the

18" century Blackstone spoke of “the confronting of adverse

witnesses” as being among the advantages of “the English{]

way of giving testimony, ore fenus” — that is, by word of mouth,

or orally.

To be sure, the norm of confrontation was not always

respected. First, a set of courts in English followed continental

procedures rather than those of the common law. Precisely for

that reason, they were politically controversial, and most of

them (notably the Court of Sta: Chamber), being viewed as

arms of an unlimited royal power, did not survive the upheavals

of the 17" century. The equity courts did survive, but without

criminal jurisdiction, and well before the end of that century the

common law courts had a sophisticated body of doctrine

governing when depositions taken in equity, subject to cross-

examination on written questions, could be used in lieu of

testimony at trial because the witness was unavailable.

Second, justices of the peace were required by statute to

examine felony witnesses, and these examinations were

admissible at trial, even though the witness had not been cross-

examined, if the examination was taken under oath and the

witness was then unavailable. This treatment — which almost

certainly was one of the chief abuses at which the Confrontation

Clause was aimed - was a continuing source of controversy, _

and in 1696, in the celebrated case of Rex v. Paine,* the court

refused to extend it to misdemeanor cases; eventually, the

practice was abolished by statutes for felony cases as well.

Finally, and perhaps most significantly, in politically

charged cases the Crown, trying to control its adversaries

through the criminal law, sometimes used testimony taken out

of the presence of the accused. Thus, the battle for

confrontation was most clearly fought in the treason cases of

Tudor and Stuart England. Even early in the 16" century,

treason defendants demanded that witnesses be brought before

them; often they used the term “face to face.”” Sometimes these

demands were heeded, but what is most notable is that they

found recurrent legislative support, acts of Parliament

repeatedly requiring that accusing witnesses be brought “face to

face” with the accused. By the middle of the 17" century, the

battle was won, and courts routinely required that treason

witnesses testify before the accused and be subjected to

questioning by him.

The notorious case of Walter Raleigh was one of many in

which Crown prosecutors used confessions made by alleged

accomplices of the accused even though the confessions were

not made under oath or before the accused; the self-accusing

° 87 Eng. Rep. 584, 90 Eng. Rep. 527, 90 Eng. Rep. 1062, 91

Eng. Rep. 246, 91 Eng. Rep. 1387 (K.B. 1696).

nature of such statements was said to be an adequate substitute

for the usual requirements of testime :y. But in 1662, the

judges of the King’s Bench ruled unanimously and definitively

in Tong 's Case that a pretrial confession “cannot be made use

of as evidence against any others” than the confessor himself.’

The confrontation right naturally found its way to America.

There, the right to counsel developed far more quickly than in

England, and with it an adversarial spirit that made

confrontation especially crucial. The right became a particular

focus of American concerns in the 1760s when the Stamp Acts

and other Parliamentary regulations of the colonies provided for

the examination of witnesses upon interrogatories in certain

circumstances. Not surprisingly, the early state constitutions

guaranteed the confrontation right. Some used the time-

honored “face to face” formula; others, following Hale and

Blackstone, adopted language strikingly similar to that later

used in the Sixth Amendment’s Confrontation Clause.

This account has not mentioned reliability. Though one of

the advantages perceived for confrontation was its contribution

to truth-determination, the confrontation right was not

considered contingent, inapplicable upon a_ judicial

determination that the particular testimony was unreliable.

Similarly, the law against hearsay has not played a role in

this account. Hearsay law, like evidence law more generally,

was not well developed at the time the Clause was adopted,

much less during the previous centuries. In expressing a

fundamental procedural principle governing how testimony

must be given, the Clause was not meant to constitutionalize the _

law of hearsay. The Roberts framework is a latter-day con-

struct, with no historical roots.

Thus, recent developments under the European Convention

on Human Rights are noteworthy. The Convention contains

’ Case of Thomas Tong, 84 Eng. Rep. 1061, 1062 (K.B. 1662),

cited in Lilly, 527 U.S. at 141 (Breyer, J., concurring).

nothing resembling a hearsay rule, of course, because most of

the judicial systems falling under it do not have hearsay law.

But Articles 6(1) and 6(3)(d) of the Convention contain,

respectively, a general protection of a criminal defendant's

right to a fair trial and a specific protection of his right "to

examine or have examined witnesses against him." Under

these provisions, the European Court of Human Rights has

issued a series of decisions establishing a right of

confrontation, which it has referred to as such.* Thus, the

confrontation right, which gained its strongest recognition in

the common law system but long predated it, is once again a

fundamental part of Western jurisprudence.

Il. THE TESTIMONIAL APPROACH REFLECTS

VALUES WARRANTING CONSTITUTIONAL

PROTECTION, AND THE ROBERTS

FRAMEWORK DOES NOT.

Securing testimony by a declarant, face-to-face with an

accused, nearly always has some benefits in comparison to mere

presentation of a prior statement by that declarant. But only

when the prior statement was itself testimonial in nature is there

justification for a systematic constitutional rule rejecting use of

the statement, even if the declarant is unavailable to be a

witness, if the accused has not had an opportunity to confront

her.

When the prosecution offers an ordinary hearsay statement,

made without any anticipation of evidentiary use, it will often

be better, taking into account considerations of truth

determination and cost, to admit the statement rather than to

* E.g., Saidi v. France, 17 &.H.R.R. 251, 270 (1993) ("Neither

at the stage of the investigation nor during the trial was the applicant

able to examine or have examined the witnesses concerned. The lack

of any confrontation deprived him in certain respects of a fair trial").

exclude it. Considering just truth determination, live testimony

of the declarant, perhaps supplemented by the hearsay

statement, is presumably preferable to presentation of the

hearsay statement alone. But sometimes the declarant cannot

be feasibly produced as a witness, and so the choice is between

admitting the statement and hearing nothing from the declarant.

If the statement is significantly probative and not particularly

prejudicial, which is true of much hearsay, it is better to admit

it than to exclude it. And even if it would be possible to

produce the declarant as a witness, the marginal benefits of

insisting that this be done might not be worth the cost of doing

so.

But whether such a non-testimonial hearsay statement

should or should not be admitted is, of course, a matter of local

evidentiary law. Ifa particular jurisdiction concludes that the

probative value of such hearsay statements outweighs the

prejudicial effect, either categorically or on a case-by-case

basis, that jurisdiction should not be precluded by the

Confrontation Clause from allowing such statements into

evidence. Conversely, if the particular jurisdiction concludes

that such statements should not be admitted, that choice is also

entitled to respect. By decoupling the Confrontation Clause

from the minutiae of the hearsay rules, the testimonial approach

would allow each jurisdiction to make its own determination as

to what non-testimonial hearsay should be admitted in criminal

cases.

Now consider the situation in which the prior statement

was testimonial — that is, made with reasonable anticipation of

evidentiary use. In this context, the same factors continue to

weigh, and with additional force, against admission of the prior

statement if the accused has not had an opportunity to confront

the declarant. But additional factors apply as well. The

fundamental difference is this: When the statement is

testimonial, the question is not simply an evidentiary one,

whether the particular statement should be included in the body

of information presented to the trier of fact. Rather, there is

now a basic procedural issue, of how testimony against an

accused shall be given. And there is no doubt that the

constitutional demand is that such testimony be given face to

face with the accused, subject to cross-examination. Cf Lilly,

527 U.S. at 142 (Breyer, J., concurring), quoting Maryland v.

Craig, 497 U.S. 836, 862 (1990) (Scalia, J., dissenting) ("[T]he _

Confrontation Clause does not guarantee reliable evidence; it

_guarantees specific trial procedures that were thought to assure

reliable evidence, undeniably among which was ‘face-to-face’

confrontation"). Insisting on such confrontation as the required

method for giving testimony serves several important

instrumental purposes:

@ Confrontation guarantees openness of procedure, which

among other benefits ensures that the witness’ testimony is not

the product of torture or of milder forms of coercion or

intimidation. This is particularly important given the contrast

to early continental systems, in which coercion of witnesses

examined privately was very common.

® Confrontation provides a chance for the defendant,

personally or through counsel, to dispute and explore the

weaknesses in the witness’ testimony. In Thomas Smith’s day

that chance came in the form of a wide-open altercation. Today

it comes in the form of cross-examination, usually through

counsel. The Court has repeatedly endorsed Wigmore’s

characterization of cross-examination as “beyond any doubt the

greatest legal engine ever invented for the discovery of truth."”

° § JOHN H. WIGMORE, EVIDENCE § 1367, p. 32 (James

Chadbourn rev. 1974), quoted in part in Lilly, 527 U.S. at 123

(plurality opinion); White, 502 U.S. at 356; Craig, 497 U.S. at 844

. Perry v. Leeke, 488 U.S. 272, 283 n.7 (1989); Kentucky v. Stincer,

482 U.S. 730, 736 (1987); Green, 399 U.S. at 158; Ford v.

Wainwright, 477 U.S. 499, 415 (1986); Lee, 476 U.S. at 540; Watkins

v. Sowders, 449 U.S. 341, 348 n.4 (1981); Roberts, 448 U.S. at 63

Of course, as Wigmore recognized, cross-examination may

sometimes lead the trier of fact away from the truth rather than

towards it. But the constitutionally required “beyond a

reasonable doubt” standard of persuasion in a criminal case

reflects the extreme disutility of a false conviction. See Jn re

Winship, 358 361-64 (1970). The same consideration demands

that the accused be able to cross-examine adverse witnesses

even if sometimes that requirement prevents the conviction of

a guilty person.

® Confrontation discourages falsehood as well as assists in

its detection. The prospect of testifying under oath, subject to

cross-examination, and in the presence of the accused makes

false accusation much more difficult than it would be otherwise.

Craig, 497 U.S. at 846; Coy v. Jowa, 487 U.S. 1012, 1019- 20.

(1988) ("It is always more difficult to tell a lie about a person

‘to his face’ than ‘behind his back.').'°

@ If, as is usually the case, the confrontation occurs at trial

or in a videotaped proceeding, the trier of fact has an

n.6; cf. United States v. Salerno, 505 U.S. 317, 328 (1992) (Stevens,

J., dissenting) (“Even if one does not completely agree with

Wigmore's assertion . . . one must admit that in the Anglo-American

legal system cross-examination is the principal means of

undermining the credibility of a witness whose testimony is false or

inaccurate.”).

Law of Evidence, 51 STAN. L. REV. 1477, 1490 (1999) (“The witness

whose credibility would be destroyed by cross-examination will not

be called at all or will try to pull the sting of the cross-examiner by

acknowledging on direct examination the facts that a cross-examiner

could be expected to harp on.”). Of course, the same prospect may

deter the giving of truthful testimony. But, again, the tradeoff

accords with the fundamental value underlying the “beyond a

reasonable doubt” standard. Craig, 497 U.S. at 846-47; Coy, 487

U.S. at 1020.

opportunity to assess the demeanor of the witness. Craig, 497

U.S. at 844; Mattox v. United States, 156 U.S. 237, 242-43

(1895) (confrontation gives the accused the opportunity “of

compelling [the witness] to stand face to face with the jury in

order that they may look at him, and judge by his demeanor

upon the stand and the manner in which he gives his testimony

whether he is worthy of belief.").

®@ Confrontation eliminates the need for intermediaries,

and along with it any doubt about what the witness's testimony

is.

Beyond these instrumental purposes, confrontation serves

a "strong symbolic purpose" — again, one that has substantial

force only when the prior statement is testimonial — that has

been repeatedly recognized by this Court. Craig, 497 U.S. at

846: Lee, 476 U.S. at 540. Even if confrontation had no impact

on the quality of prosecution evidence, it would be important to

protect because, as the Court said in Coy and repeated in Craig,

"there is something deep in human nature that regards

face-to-face confrontation between accused and accuser as

‘essential to a fair trial in a criminal prosecution.” It is not only

fairness to the accused that is at stake, but also the moral

responsibility of witnesses and of society at large, for

“requiring confrontation is a way of reminding ourselves that

we are, or least want to see ourselves as, the kind of people who

decline to countenance or abet what we see as the cowardly and

ignoble practice of hidden accusation.” Sherman J. Clark, An

Accuser-Obligation Approach to the Confrontation Clause, 81

NEB. L. REV. 1258 (2003).

The symbolic value of confrontation is enhanced by the

historical background that we have reviewed in Part II of this

brief. Indeed, even if confrontation served no other value at all,

it would be important to honor the right that accused persons

have had for many centuries governing how witnesses against

them may testify. Like Festus, we can say that it is not our way

to allow an accused to be convicted of a crime without his

having had a chance to have the witnesses against him testify to

his face.

These symbolic and historic functions, as well as the

instrumental values achieved by making confrontation the

prescribed method for giving testimony, refute the notion that

the confrontation right may be abrogated on a case-by-case

basis. That is, it would be inappropriate to hold that confron-

tation is unnecessary in a given case because the quality of the

particular witness’s testimony is good enough even without

confrontation. The Sixth Amendment does not provide that if

the quality of the prosecution evidence in a given case is good

enough then we may dispense with the right to jury or the right

to counsel. The right to confront adverse witnesses should be

treated the same way.

Indeed, this is clearly the rule with respect to in-court

witnesses. Suppose a prosecution witness gives significant

direct testimony at trial but that the accused, through no fault of

his own, has no opportunity to cross-examine — perhaps the

witness dies or simply refuses to answer the accused’s

questions. The direct testimony must be struck, without regard

to its reliability.'' There is no reason why the rule should be

different with respect to a witness who makes a testimonial

statement out of court but then fails, for reasons other than the

accused's wrongdoing, to testify at trial. Such testimony should

not be allowed to help convict the accused.

The testimonial approach, then, reflects a basic principle

that is central to our system of criminal justice. The Roberts

framework, by contrast, does not implement values warranting

constitutional protection. That approach purports to make

reliability, or trustworthiness, the crucial consideration. But the

'' See, e.g., Toogood v. Borg, 828 F.2d 571, 572-73 (9th Cir.

1987) (explaining that when a prosecution witness cannot or will not

submit to cross-examination, the direct testimony is struck, but that

if this is inadequate a mistrial is required).

enterprise is misguided. See, e.g., Eleanor Swift, Smoke and

Mirrors: The Failure of the Supreme Court's Accuracy

Rationale in White v. Illinois Requires a Naw Look at

Confrontation, 22 Cap. U. L. REV. 145, 148 (1993) (“The

Court's accuracy rationale is the product of smoke and mirrors,

rather than of a realistic analysis of the values underlying

confrontation.”’).

A trial is not, and as a practical matter cannot be, limited

to trustworthy evidence. Indeed, were there truly trustworthy

evidence with respect to a given factual issue, the issue would

not have to be tried at all, or at least the outcome would be

virtually a foregone conclusion. In a trial all sorts of evidence

that taken alone might be very untrustworthy is presented to the

trier of fact. This includes the live testimony of witnesses

testifying from personal knowledge and subject to cross-

examination — the paradigm of acceptable evidence and yet a

species that is often highly unreliable. See, e.g., United States

v. Wade, 388 U.S. 218 (1967); ELIZABETH F. LOFTUS & JAMES

M. DOYLE, EYEWITNESS TESTIMONY: CIVIL AND CRIMINAL (3d

ed. 1997). The trier of fact must assess all the evidence, and

even though the individual items may be unreliable the

evidence may be enough in the aggregate to support a finding

of proof beyond a reasonable doubt.

Nevertheless, the perception has arisen that only if hearsay

is sufficiently reliable is it safe to dispense with the usual

requirement of cross-examination. See Lilly, 527 U.S. at 123

(plurality opinion, speaking of statements containing guarantees

of trustworthiness “such that adversarial testing would be

expected to add little, if anything, to the state ~ents'

reliability”). The perception is unfounded empirically. i here

is no good support for the conclusion that jurors tend

systematically to over-value hearsay, and in some settings they

seem to under-value it. Roger C. Park, Visions of Applying the

Scientific Method to the Hearsay Rule, MicH. ST. DCL L. REV.

(2003, forthcoming). To the extent that the “mission”-of the

zoe * pdt it

nO nb ca

Confrontation Clause is to "advance the accuracy of the truth-

determining process in criminal trials," Tennessee v. Street, 471

U.S. 409, 415 (1985) (citation and internal quotation marks

omitted), the attempt to exclude hearsay not deemed sufficiently

reliable is self-defeating.

Moreover, the doctrine that proceeds from this attempt is

unworkable. Suppose that the doctrine were taken literally, and

hearsay were allowed only “if the declarant's truthfulness is so

clear from the surrounding circumstances that the test of

cross-examination would be of marginal utility.” /daho v

Wright, 497 U.S. 805, 820 (1990). If this standard were applied

conscientiously, very few statements would meet it — and there

is no ground for confidence that hearsay law would identify

them. For example, it is self-evident that statements by

conspirators in furtherance of their criminal enterprise, admis-

sible in federal court pursuant to Fed. R. Evid. 801(d)(2)(E), are

not a particularly trustworthy class of assertions. See 4

CHRISTOPHER B. MUELLER & LAIRDC. KIRKPATRIC K, FEDERAL

EVIDENCE 295 (2d ed. 1994) (“the case for reliability is at best

marginal”). Similarly, consider which of the following is more

likely to reflect a reasonable assessment by defense counsel

when a dying declaration is admitted, pursuant to rules like Fed.

R. Evid. 804(b)(2): (1) “If only | could cross-examine the

declarant, | could explore whether she really had an opportunity

to observe her assailant, whether her mind was clear at the time

she accused my client, and whether she had a grudge against

him,” or (2) “It doesn’t matter that I couldn’t cross-examine.

She knew she was about to die when she spoke, and no one

would want to meet with her Maker with a lie on her lips, see

Wright, at 820, so 1 couldn’t have done a thing with her.” We

do not contend that such statements should always be excluded

— but only that they should not be admitted on the clearly false

ground that they are reliable.

Finally, it is singularly inappropriate for the adjudicative

system to say to an accused, in effect, “Yes, it is true that you

did not get a chance to question this witness. But we have

concluded that this does not matter, because the statement was

so reliable that cross-examination would have made very little

difference.” Such a ruling ignores not only the human values

underlying the Confrontation Clause but also the defend ~ s

right to present his case to, and to attempt to persuade, the er

of fact.

In sum, the Confrontation Clause is meant not to ensure

that only reliable evidence is presented at trial but to guarantee

the traditional principles by which testimony is given. T is

proposition points the way to the manner in which the Clause

can be implemented faithfully and practically.

IV. ASCOMPARED TO THE ROBERTS FRAMEWORK,

THE TESTIMONIAL APPROACH GIVES BETTER

GUIDANCE TO THE LOWER COURTS, IS MO!

PRACTICAL TO IMPLEMENT, AND IS LEs>»

SUSCEPTIBLE TO MANIPULATION.

The testimonial approach can be articulated in terms of

four basic questions.

First, was the statement testimonial in nature? The

statement falls within the scope of the Confrontation Clause if

and only if the answer is affirmative. This question can be

made operational in various ways. One practical possibility is

an objective test that would ask: Would a reasonable person in

the declarant’s position anticipate that the statement would

likely be used for evidentiary purposes? Adoption of the

testimonial approach in this case does not require marking out

the precise bounds of the class of testimonial statements

because here, as in most cases, the exact wording of the test

would not be decisive. It is clear that Sylvia Crawford's

statement to the police was testimonial, under any reasonable

approach. The statement was electronically recorded by the

police in a police station after the incident at issue. The

CAT GES

m ie ag?

recording was made with considerable ceremony, clearly for use

in later proceedings, and Ms. Crawford spoke in response to

questioning much as if in a deposition — but without oath or

cross-examination. If statements made in such circumstances

are allowed as proof at trial, then under any plausible view the

declarant is testifying when she makes such a statement, for

there is no doubt that a reasonable person in her position would

anticipate that her statements would likely be used as evidence

in a future criminal proceeding.

Just as in this case, the question of whether a given

statement should be considered testimonial can usually be

rather easily resolved, as indicated by the following “rules of

thumb,” see Richard D. Friedman, Confrontation: The Search

for Basic Principles, 86 Geo. L.J~1011, 1040-43 (1998). A

statement made knowingly to the authorities that describes

criminal activity is almost always testimonial. A statement

made by a person claiming to be the victim of a crime and

describing the crime is usually testimonial, whether made

directly to the authorities or not. If, in the case of a crime

committed over a short period of time, a statement is made

before the crime is committed, it almost certainly is not

testimonial. A statement made by one participant in a criminal

enterprise to another, intended to further the enterprise, is not

testimonial. And neither is a statement made in the course of

going about one's ordinary business, made before the criminal

act has occurred or with no recognition that it relates to criminal

activity.

Thus, testimonial statements include not only statements

made as testimony at the trial itself, see Coy; Craig, but also

testimony given at a prior trial, see Mattox; Mancusi v. Stubbs,

408 U.S. 204 (1972); or other judicial proceeding, see Pointer

v. Texas, 380 U.S. 400 (1965); Barber v. Page, 390 U.S. 719

(1968); Green; Roberts, and statements, like the one in this

case, knowingly made to investigating authorities, see Douglas

v. Alabama, 380 U.S. 415 (1965); Green; Lee: Lilly; United

States v. Owens, 484 U.S. 554 (1988). At the other end, some

statements, including those made in furtherance of a conspiracy,

see United States v. Inadi, 475 U.S. 387 (1986), Bourjaily v.

United States, 483 U.S. 171 (1987), can be rather easily deemed

non-testimonial, because they were made absent any indication

of evidentiary use, see Dutton v. Evans, 400 U.S. 74 (1970), and

these uv not raise a concern under the Confrontation Clause

(though other bodies of law, including the jurisdiction’ s hearsay

law, may require exclusion). Inevitably, some cases remain

near the borderline,'’ but that fact itself is not troublesome.

Assuming the statement was testimonial, so that the

declarant should be deemed to have been acting as a witness in

making it, then the accused had a right to confront the witness.

The second basic question, then, is: Will the accused have had

an adequate opportunity to confront the witness? \n some

settings, this question poses interesting issues, such as whether

the witness may testify via an electronic connection to the

" See, e.g., Wright, White; Friedman & McCormack, supra, | 50

U. PA. L. REV. at 1241-43. Amici candidly acknowledge that

statements by young children will present some of the closest issues

under the testimonial approach, just as they do in the current

framework. Pre-trial statements by children to care-givers such as

parents and physicians may be considered non-testimonial in some

circumstances even though statements by adults in similar

circumstances would likely be considered testimonial. Depending on

the context, the statement of a very young child of limited

understanding might be considered for purposes of the Confrontation

Clause to be more like the barking of a dog, and so non-testimonial,

than like the accusatory statement of an adult. A statement by a child

in response to questioning by a police officer or physician to whom

the child has been referred because of suspicions of abuse is more

likely to be testimonial than is a spontaneous statement by the child

before abuse has been suspected. See generally Richard D Friedman,

The Conundrum of Children, Hearsay, and Confrontation, 65 LAW

& CONTEMP. PROBS. 243, 249-52 (Winter 2002).

courtroom, see Craig,’ whether an opportunity to cross-

examine at as preliminary hearing suffices for purposes of the

Confrontation Clause, Green, or whether the witness’s memory

loss at the time of cross-examination unduly impairs the

accused’s confrontation opportunity. Owens. Usually, though,

the answer to this question is clear, as it was, for example, in

Pointer, Douglas, Lee, and Lilly, and as it is here; Michael

Crawford did not have an opportunity to cross-examine Sylvia.

If the accused will not have had an adequate opportunity to

confront the witness, then introduction of the testimonial

Statement to prove the truth of what it asserts'* violates the

accused’s confrontation right unless the answer to the third

question is in the affirmative: Did the accused waive the right

to confrontation by failing to object, or forfeit it by

misconduct?'* The accused might forfeit the right, for example,

* See also Statements of Scalia, J., 535 U.S. 1159, and of

Breyer, J., dissenting, 535 U.S. 1162, in conjunction with the

decision not to transmit to Congress a proposed amendment to Fed.

R. Crim. P. 26 (2002).

'* Cf Tennessee v. Street, 471 U.S. 409(1985)(no confrontation

violation where statement was not introduced to prove the truth of

what it asserted).

'* In the Washington appellate and supreme courts, but not in

opposing certiorari, the State contended that petitioner, who

strenuously asserted his confrontation right, nevertheless forfeited it

by invoking marital privilege to keep Sylvia from testifying at trial.

Even assuming that absent an assertion of privilege by petitioner

Sylvia would have testified at trial — which does not appear to be true

— petitioner clearly did not commit misconduct by asserting a right

the State granted to him as a matter of law, and so the state courts

correctly rejected the forfeiture argument. Cf Fed. R. Evid.

804(b\(6) (providing for forfeiture of hearsay objection by

“wrongdoing”), Green v. United States, 355 U.S. 184 (1957)

by intimidating the witness, kidnapping her, or murdering her.

An accused cannot complain about his inability to confront the

witness if it is his own wrongful conduct that created that

inability. This principle - rather than the fiction that cross-

examination would be practically useless anyway because a

declarant would not to die with a lie on her lips — best explains

the admissibility of certain statements by dying witnesses. '°

If the testimonial statement was made at an earlier time,

and the accused then had an adequate opportunity to confront

__ the w: ness, a fourth question arises: Has the witness been

shown to be unavailable to testify at trial? \f the answer is

negative, then the statement may not be used, because live

testimony is possible and preferred. See Barber; Roberts, 448

(rejecting claim that defendant forfeited double jeopardy right

against retrial on acquitted offense by successfully asserting statutory

right to appeal conviction on lesser offense).

reason the victirr nnot testify at trial is that the accused murdered

her, then the ac.used should be deemed to have forfeited the

confrontation right, even though the act with which the accused Is

charged is the same as the one by which he allegedly rendered the

witness unavailable. Just as in Bourjaily, bootstrapping does not

pose a genuine problem. See Richard D. Friedman, Confrontation

and the Definition of Chutzpa, 3\ ISRAEL L. REV. 506 (1997).

Note that if one took the rationale of the dying declaration

exception seriously, it would justify admitting any statement made

on the verge of death. The facts that the exception is limited to

statements concerning the caus. of the apparently impending death,

and that within the criminal context it 1s limited to homicide cases,

suggest that the motivating concern is that the victim cannot testify

against the assailant at trial because the assailant killed her.

Children who might otherwise testify at trial are particularly

susceptible to intimidation by criminal defendants, in which case

forfeiture might apply. See generally Friedman, Conundrum, supra,

65 LAW & CONTEMP. PROBS. (Winter 2002) at 252-55.

U.S. at 63 (“the Confrontation Clause reflects a preference for

face-to-face confrontation at trial”). If the answer is

affirmative, however, the Confrontation Clause poses no

obstacle to admissibility of the statement, unless the

prosecution’s wrongdoing caused the unavailability. See

Mattox, Mancusi; Roberts. Taking the testimony at trial would

be ideal, but the ideal is not possible; an opportunity for

confrontation is what is essential, and the accused has had it.

We do not contend that resolution of all Confrontation

Clause cases becomes easy under the testimonial approach. We

do contend that this approach makes easy analysis of cases that,

like Pointer, Douglas, Lee, Lilly, and this case, pose the core

concerns underlying the Confrontation Clause. See Lilly, 527

U.S. at 143 (Scalia, J.) (describing the case as involv.ig “a

paradigmatic Confrontation Clause violation”). Some cases are

close to the borderline, but that is as it should be. We also

contend that this approach poses the questions that trial courts

should be asking in addressing cases under the Clause,

questions that will lead to appropriate results. Indeed, as the

citations have suggested, we believe that this approach is

consistent with the results of all the Court’s Confrontation

Clause precedents.

That the Court has reached sensible results under the

Roberts framework does not suggest that the framework is

accomplishing its purpose. On the contrary, the Court has

reached sensible results only by manipulating the framework.

The framework itself has not led to the results, but has only

obscured the unarticulated principle that supports them.

For example, the Court has held that conspirator statements

fall within a “firmly rooted” hearsay exception and thus satisfy

the Roberts reliability requirement. Bourjaily, 483 U.S. at 182-

84. But the Court did not even suggest that conspirator

declarations are a particularly reliable set of statements. Quite

the reverse is true. See id at 201 (Blackmun, J.. dissenting)

(“this exemption has never been justified primarily upon

reliability or trustworthiness grounds and its reliability

safeguards are not extensive”); /nadi, 475 U.S. at 405 (“It is no

victory for common sense to make a belief that criminals are

notorious for their veracity the basis of law.” (quoting Joseph

H. Levie, Hearsay and Conspiracy, 52 MICH. L. REV.1159,

1166 (1954))). It would be much better to recognize that

conspirator statements are simply not testimonial and so do not

fall within the scope of the Confrontation Clause at all.

On the other side, consider Lee. At issue was a confession

by an accomplice who, while inculpating the accused, also

accepted responsibility for a central role in a cold-blooded and

brutal murder. Justice Blackmun argued powerfully that the

confession was “thoroughly and unambiguously adverse to his

penal interest,” and that because the portion inculpating the

accused was inseverable from the portion inculpating the

declarant the statement could not be dismissed as merely an

attempt to shift blame to the accused. 476 U.S. at 551-53.

Nevertheless, a bare majority refused to treat the statement as

a declaration against interest, saying in a footnote, “That

concept defines too large a class for meaningful Confrontation

Clause analysis.” 476 U.S. at 544 n.5. This is an ironic

response, given that the Roberts framework aims to simplify

analysis by exempting from the Confrontation Clause categories

of statements that fall within “firmly rooted” hearsay exceptions

and so are deemed “without more” to be reliable. The majority

then reached the highly contestable conclusion that the

statement was not reliable, and so held that admission of the

statement violated Lee’s confrontation right. This awkward

holding would have been unnecessary had the Court simply

recognized that the accomplice’s statement to the police was

clearly testimonial; accordingly, it could not be introduced

against Lee unless she had an opportunity to confront the

accomplice.

Finally, consider the Court’s treatment of unavailability.

In Roberts, the Court appeared to state a broad rule that hearsay

would not be admissible unless the declarant was shown to be

unavailable to be a witness. But in /nadi and again in White the

Court restricted this principle, declining to apply it to the

statements involved there and implying that it applied only to

former testimony.'’ That the Court “effectively abandoned” the

unavailability requirement except for former testimony,

Randolph N. Jonakait, Restoring the Confrontation Clause to

the Sixth Amendment, 35 UCLA L. Rev. 557, 561 (1988), was

perplexing to knowledgeable observers. Calling this “an ironic

result,” for example, one leading textbook says:

The major deficiency of hearsay is thought to be the

absence of cross-examination, and one of the central

concerns of the Confrontation Clause is to ensure that the

cross-examination of testifying witnesses is not unduly

hampered. Now it appears that the one traditional hearsay

exception that turns on the opportunity for cross-

examination may face a hurdle under the Confrontation

Clause that no other hearsay exception need jump.

RICHARD O. LEMPERT, SAMUEL R. Gross & JAMES S.

LIEBMAN, A MODERN APPROACH TO EVIDENCE 756-57 (3d ed.

2000). See also, e.g., Swift, supra, 22 CAP. U.L. REV. at 146-

47 (criticizing White's “blanket rejection of an unavailability

requirement in most cases” and summarizing negative academic

response).

The testimonial approach explains the conundrum. Former

testimony should not be used in lieu of trial testimony if it is

reasonably possible to cause the witness to testify at trial. But

if the testimony of the witness cannot be secured at trial, then

the former testimony is a satisfactory substitute, assuming the

' In other settings, the Court has avoided the issue of

unavailability. Lilly, 527 U.S. at 124 n.1 (plurality opinion); Wright,

497 U.S. at 816; Lee, 476 U.S. at 539.

accused had an adequate opportunity at an earlier time to

confront the witness. If the accused did not have such an

opportunity — as in this case, in Lee, and in Lilly — then the prior

testimonial statement may not be used in place of trial

testimony, whether the witness is available or not, so long as

the accused did not waive or forfeit the confrontation right. If,

on the other hand, the statement is not testimonial in nature,

then the Confrontation Clause poses no obstacle to its

admissibility (though local evidentiary rules might), whether the

declarant is available or not. To a considerable extent, the

hearsay exceptions other than the one for former testimony

define, or can be manipulated to define, categories of evidence

that are not testimonial. Statements falling within such cate-

gories should present no confrontation issue, irrespective of

unavailability.

In short, the Court’s results have been better than its

reasons. It is therefore not surprising that lower courts have

found the doctrine enunciated by the Court difficult to follow

and have often reached unacceptable results, sometimes

tolerating what clearly amounted to station-house testimony.

For example, even though every member of the Court in Lilly

agreed that the admission of a non-testifyin, accomplice’s

police confession against the defendant violated the

Confrontation Clause notwithstanding the State’s claim that the

confession fell within the statement against penal interest

hearsay exception, many lower courts since Lilly have admitted

police confessions from non-testifying accomplices under that

very same exception, often finding such statements to be

exceptionally “trustworthy.” See Roger W. Kirst, Appellate

Court Answers to the Confrontation Question in Lilly v.

Virginia, 53 SyR. L. REV. 87 (2003) (reviewing post-Lilly

cases). Only if the Court articulates the underlying principle

that has guided its decisions will the lower courts be able to

follow its lead consistently.

The Court should resist the temptation to put off until

another day the restructuring that it needs to do. There will

never be a case in which achieving a sensible result will require

the Court to reject the current framework. But, as we have

shown, that fact does not suggest that the framework is

succeeding. On the contrary, it means that the framework is so

malleable as to have no guiding force. A court can reach any

result it sees fit under the current framework. If it is inclined to

hold that the Confrontation Clause does not preclude

admissibility of a given statement, it can find adequate case-

specific “indicia of trustworthiness” to cite. If it is inclined to

hold that the Clause does preclude admissibility, it can cite

reasons why the particular statement is not in fact sufficiently

trustworthy, and as in Lilly it can hold that the “firmly rooted”

prong does not apply because the hearsay exception in issue is

not “firmly rooted” to the extent the exception is deemed to

cover statements of a given description. Alternatively, except

when a federal court reviews a state conviction, the court can

issue a restrictive ruling on hearsay law, and thus exclude the

evidence without reaching the confrontation issue, though doing

so has collateral consequences in making hearsay law unduly

rigid in contexts where the confrontation right is not at stake.'*

If the Court continues to use the present framework, it can

continue to reach sensible results, but the lower courts will also

continue to manipulate the doctrine to reach unpredictable and

indefensible results. The Court should not forsake the opportu-

nity to articulate and protect a noble principle of long standing,

one that will provide clear guidance to the lower courts.

'* Thus, for example, Williamson v. United States, 512 U.S. 594

(1994), construed the exception for declarations against interest far

more restrictively than most prior authorities suggested, see 2

MCCORMICK ON EVIDENCE 344-45 (John William Strong, gen. ed. 4"

ed. 1992). The Williamson rule has limited applicability of the

exception in civil as well as criminal cases. See Silverstein v. Chase,

260 F.3d 142 (2d Cir. 2001).

CONCLUSION

Current doctrine relies on hearsay law to do the work that

should be performed by the Confrontat: »n Clause, and this has

been detrimental to both. It has made hearsay law overly rigid,

and it has obscured the meaning of the Clause. Once it is

recognized that the scope of the Clause is narrower than that of

hearsay law, that it applies only to those statements that are

testimonial in nature, the essence of that right becomes

apparent: It protects one of the central procedural aspects of our

system of criminal justice, the presentation of testimony in the

presence of the accused and subject to cross-examination. That

right may be waived or forfeited, but it is not subject to

exceptions nor can it be trumped by a judicial determination

that the particular statement at issue is reliable.

Respectfully submitted,

Richard D. Friedman