Amicus Curiae Brief — Crawford v. Washington

MOTION FILED

jUL 24 203 No. 02-9410

IN THE

Supreme Court of the United States

MICHAEL D. CRAWFORD,

Petitioner,

V.

WASHINGTON,

Respondent.

On Writ of Certiorari

to the Supreme Court of Washington

MOTION FOR LEAVE TO FILE BRIEF OF AMICI

CURIAE AND BRIEF OF AMICI CURIAE

THE NATIONAL ASSOCIATION OF CRIMINAL

DEFENSE LAWYERS, THE AMERICAN CIVIL

LIBERTIES UNION AND THE ACLU OF

WASHINGTON IN SUPPORT OF PETITIONER

DAVID M. PORTER JEFFREY T. GREEN*

NATIONAL ASSOCIATION OF ROBERT N. HOCHMAN

CRIMINAL DEFENSE LAWYERS MATTHEW J. PRESS

801 I Street, 3rd Floor SIDLEY AUSTIN BROWN &

Sacramento, CA 95814 WoOobD LLP

(916) 498-5700 1501 K Street, N.W.

Washington, D.C. 20005

STEVEN R. SHAPIRO (202) 736-8000

AMERICAN CIVIL LIBERTIES

UNION

125 Broad Street

New York, NY 10004

(212) 549-2500

Counsel for Amici Curiae

July 24, 2003 * Counsel of Record

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WILSON-EPES PRINTING CO., INC. — (202) 789-0096 - WASHINGTON, D. C. 20001

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Pr eT ae Oe TP Re 2 ee Pa)

IN THE

Supreme Court of the Cnited States

No. 02-9410

MICHAEL D. CRAWFORD,

Petitioner,

Vv.

WASHINGTON,

Respondent.

On Writ of Certiorari to the

Supreme Court of Washington

MOTION OF THE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS, THE AMERICAN

CIVIL LIBERTIES UNION AND THE ACLU OF

WASHINGTON FOR LEAVE TO FILE BRIEF AS

AMICI CURIAE

Amici curiae the National Association of Criminal Defense

Lawyers (“NACDL”), the American Civil Liberties Union

and the ACLU of Washington (“ACLU”) respectfully request

leave of this Court to file the following Brief in the above

captioned matter. In support of their motion, NACDL and the

ACLU state as follows:

1. NACDL and the ACLU requested the consent of both

petitioner and respondent to file their amici curiae brief in

this case. The petitioner granted his consent in writing.

Petitioner's written consent has been filed with the Court.

Respondent refused its consent.

2. NACDL is a non-profit corporation with a membership

of more than 10,000 attorneys and 28,000 affiliate members

in 50 states, including private criminal defense lawyers,

public defenders and law professors. The American Bar

Association recognizes NACDL as an affiliate organization

and awards it full representation in its House of Delegates.

NACDL was founded in 1958 to promote study and research

in the field of criminal law, to disseminate and advance

knowledge of the law in the area of criminal practice, and to

encourage the integrity, independence, and expertise of

defense lawyers in criminal cases. NACDL seeks to defend

individual liberties guaranteed by the Bill of Rights and has a

keen interest in ensuring that criminal proceedings are

handled in a proper and fair manner. NACDL’s objectives

include the promotion of the proper administration of justice.

To promote these goals, NACDL has frequently appeared

before this Court as amicus curiae.

3. NACDL believes that its familiarity with the courtroom

level application of this Court’s Confrontation Clause rulings

will aid this Court’s understanding of the issues presented in

this case. This brief focuses on the practical consequences of

this Court’s decisions for criminal defendants and defense

attorneys.

4. The ACLU is a nationwide, nonprofit, nonpartisan

organization with nearly 400,000 members dedicated to the

principles of liberty and equality embodied in_ the

Constitution. The ACLU of Washington is its statewide

affiliate. In support of those principles, the ACLU has

appeared before this Court on numerous occasions, both as

direct counsel and as amicus curiae.

5. The ACLU recognizes that this case raises the important

question of how the \vital protections of the Confrontation

Clause should be implemented. The ACLU believes this

brief, which focuses on how consistent application of the right

to confront one’s accusers aids the accuracy and fairness of

-

the criminal process, will aid in this Court’s consideration of

this case.

Respectfully submitted,

DAVID M. PORTER JEFFREY T. GREEN*

NATIONAL ASSOCIATION OF ROBERT N. HOCHMAN

CRIMINAL DEFENSE LAWYERS MATTHEW J. PRESS

801 I Street, 3rd Floor SIDLEY AUSTIN BROWN &

Sacramento, CA 95814 WoOobD LLP

(916) 498-5700 1501 K Street, N.W.

Washington, D.C. 20005

STEVEN R. SHAPIRO (202) 736-8000

AMERICAN CIVIL LIBERTIES

UNION

125 Broad Street

New York, NY 10004

(212) 549-2500

Counsel for Amici Curiae

July 24, 2003 * Counsel of Record

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.

Il. Whether this Court should reevaluate the Confrontation

Clause framework established in Ohio v. Roberts, 448 US.

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.

(i)

TABLE OF CONTENTS

QUESTIONS PRESENTED ..00 es.

TABLE OF AUTHORITIES. ..00 es.

THE CONFRONTATION CLAUSE PROHIBITS

THE ADMISSION OF TESTIMONIAL OUT-OF-

COURT STATEMENTS AGAINST A DEFEN-

DANT UNLESS THE DEFENDANT HAS BEEN

PROVIDED AN OPPORTUNITY TO CONFRONT

A. Confrontation As A Procedural Mechanism

For Discovering Truth...........................:cc0

= B. The Roberts Framework Fails To Protect The

Values Of The Confrontation Clause Because

Its Inherent Subjectivity Produces Inconsistent

SEARS EE Bre ee ers ashuaow eA a OE

C. The Testimonial Approach Provides Greater

Certainty And Is More Consistent With The

Text And Values Of The Confrontation Clause

CONCLUSION 0 ooooooococcccccceeceeccee GRAM Be ccts

(iii)

Page

22

26

iv

TABLE OF AUTHORITIES

CASES Page

Barrow v. State, 749 A.2d 1230 (Del. 2000) ......... 18

Bourjaily v. United States, 483 U.S. 171 (1987)... 23

Brooks v. State, 787 So.2d 765 (Fla. 2001) ........... 18

Brown v. State, 953 P.2d 1170 (Wyo. 1998) ........ 16, 17,

18, 19

Bruton v. United States, 391 U.S. 123 (1968)........ me

10, 24

Calvert v. Wilson, 288 F.3d 823 (6th Cir. 2002)... 16

Coy v. lowa, 487 U.S. 1012 (1988)... 4

Cruz v. New York, 481 U.S. 186 (1987) ............ 2, 12, 24

Douglas v. Alabama, 380 U.S. 415 (1965)....2, 9, 10, 24

Dowdell vy. United States, 221 U.S. 325 (1911)... 10

Dutton v. Evans, 400 U.S. 74 (1970)..........0.......6. 1,6

Earnest v. Dorsey, 87 F.3d 1123 (10th Cir.

ITT 1 oss-scd.daneeetliaibiaesesiananiniaeniodsneibiammeneepeneniedeueaiadal 18

Gabow v. Commonwealth, 34 S.W.3d 63, 78-79

IN TI inatciociashuitiahinamnipieabihnetetiiaigadbaniiennntowe 18

California v. Green, 399 U.S. 149 (1970)............. 5, 6

Idaho v. Wright, 497 U.S. 805 (1990) ................. passim

Kentucky v. Stincer, 482 U.S. 730 (1987).............. 4

Lee v. Illinois, 476 U.S. 530 (1986) .............. 2, 9, 12, 24

Lilly v. Virginia, 527 U.S. 116 (1999)...........0..... passim

Maryland v. Craig, 497 U.S. 836 (1990).............. passim

Mattox v. United States, 156 U.S. 237 (1895) .....1, 6, 24

Motes v. United States, 178 U.S. 458 (1900)......... 10

Ohio v. Roberts, 448 U.S. 56 (1980) 0... passim

People v. Campbell, 721 N.E.2d 1225 (Ill. Ct.

FI, GI vx secevsncanescsscnsasisiiscnenssenneiunes: sinentnsnanees 19

People v. Schutte, 613 N.W.2d 370 (Mich Ct

GD SD icciicincsccinimtpriiionasniiocnasieinniiagn 16, 17, 18, 19

People v. Thomas, 730 N.E.2d 618 (Ill. App. Ct.

ERR LT a CE ANON a ae 16, 17, 18

Pointer v. Texas, 380 U.S. 400 (1965) .................. 4

Reynolds v. United States, 98 U.S. 145 (1878)...... 24

83 —— eos.

|

t

}

Vv

TABLE OF AUTHORITIES—continued

Page

State v. Campbell, 30 SCL. (1 Rich) 124 :

(1844), available at 1844 WL 2558. | 6

State v. Crawford, 54 P.3d 656, 663 (Wash

Re eee aR ee 1, 2, 15, 19

State v. Franco, 950 P.2d 348 (Or Ct. App.

EE Sie A 16,17

State v. Marshall, 737 N.E.2d 1005 (Ohio Ct

RE SE SRR a 17

State v. Murillo, 623 N.W.2d 187 (Wis. Ct. App.

ECAR ee ae SORE EE FTC 19, 21

State v. Sheets, 618 N.W. 2d 117 (Neb. 2000)....... 18

Stevens v. People, 29 P3d 305, 315 (Colo.

RIE fern 5 ALD 18, 19, 20

Taylor v. Illinois, 484 U.S. 400 (1988)... 5

Tennessee v. Street, 471 U.S. 409 (1985) .............. 4

United States v. Castelan, 219 F 3d 690 (7th Cir.

eee ERS ae te 17, 20

United States v. Centracchio, 265 F.3d 518 (7th

RENEE Eee cen, 17, 18, 20

United States v. Dolah, 245 F.3d 98 (2d Cir.

ET SEL eRe Ss Meee 5 a 18

United States v. Gomez, 191 F.3d 1214 (10th Cir.

RE eR ee SERS Ce 17, 18, 19

United States v. Inadi, 475 U.S. 387 (1986).......... 23

United States v. Papajohn, 212 F.3d 1112 (8th

RSE REIS EONS bee eal el ted 17

White v. Illinois, 502 U.S. 346 (1992)... 1, 6, 9, 22, 23

Wright v. State, 440 S.E.2d 7 (Ga. 1994) .............. 19

CONSTITUTION

U.S. Const., amend. VE o.oo. cococcccceccceee, 4

vi

TABLE OF AUTHORITIES—continued

SCHOLARLY AUTHORITIES

3 William Blackstone, Commentaries on the Laws

EE eitirtscicnsesesiwnsnccenseneinisimimnemmeden

Akhil R. Amar, Zhe Constitution and Criminal

I «nlc cicotsessitininiisapandeaniionniarnsin

John G. Douglass, Confronting the Reluctant

Accomplice, 101 Colum. L. Rev. 1797 (2001) ...

Margaret A. Berger, 7he Deconstitutionalization

of the Confrontation Clause: A Proposal for a

Prosecutorial Restraint Model, 76 Minn. L.

Rev. 557 (1992)........... sad btaivieteitsidatatsblaiiantiess

Penny J. White, Rescuing the Confrontation

Clause, 54 §.C. L. Rev. 537 (2003) ..................

Richard D. Friedman, Confrontation: The Search

for Basic Principles, 86 Geo. LJ. 1011

CRSA Cee Sit re eee oa

Richard D. Friedman & Bridget McCormack,

Dial-In Testimony, 150 U. Pa. L. Rev. 1171

EL ATE Ree eee ee eee Cnn Ne men es

Page

22

Sate Neer

ee oi ae

INTEREST OF AMICI CURIAE'

The interest of amici is set forth in the accompanying

motion for leave to file this brief

SUMMARY OF ARGUMENT

In this case, the State of Washington secured the conviction

of Petitioner by using a statement of his wife and accomplice,

Sylvia Crawford, given in response to police questioning

while in police custody. Sylvia did not appear at trial and was

never subject to cross-examination, was never observed by

the jury, and was never required to offer her statement

inculpating Petitioner while in his presence. The substance of

her statement helped the State defeat Petitioner’s self-defense

theory. See State v. Crawford, 54 P.3d 656, 663 (Wash.

2002) (reproducing Sylvia’s testimony discussing whether the

victim had reached for a knife before or after Petitioner

stabbed him). While Sylvia inculpated herself in the crime,

her statement also shifted blame from herself to her husband

by clearly identifying him as the assailant, not her.

Admission of statements like Sylvia’s strikes at the core of

the Confrontation Clause. As this Court has repeatedly

recognized, the right of confrontation was designed to prevent

trial and conviction by witness affidavit obtained by

investigators without affording the accused the opportunity to

confront the witness. Lilly v. Virginia, 527 U.S. 116, 124

(1999) (plurality opinion); White v. Jilinois, 502 U.S. 346,

362 (1992) (Thomas, J., concurring); Dutton v. Evans, 400

U.S. 74, 94 (1970) (Harlan, J., concurring); Mattox v. United

States, 156 U.S. 237, 242 (1895). Sylvia’s statement closely

' Pursuant to Rule 37.6, counsel for amici states that no counsel for a

party authored this brief in whole or in part and no person, other than

amici, its members, or its counsel made a monetary contribution to the

preparation of this brief.

2

resembles that old and rejected model. That is why this Court

has repeatedly held that a witness statement, made to ‘he

police investigating a crime, and inculpating the defendant

must be excluded. Lilly, supra, idaho v. Wright, 497 US.

805 (1990); Cruz v. New York, 481 U.S. 186 (1987); Lee v.

Illinois, 476 U.S. 530 (1986), Douglas v. Alabama, 380 U.S.

415 (1965); Bruton v. United States, 391 U.S. 123, 133-34

(1968).

Nonetheless, the Washington Supreme Court, applying the

Confrontation Clause framework established by this Court in

Ohio v. Roberts, 448 U.S. 56 (1980), allowed Sylvia’s

statement to be admitted against Petitioner at trial. The

Roberts framework permits a judge to admit an unavailable

witness’s out-of-court statement if the statement contains

“particularized guarantees of trustworthiness.” /d. at 66.

According to the Washington Supreme Court, Sylvia’s

statement could go to the jury without the rigors of

adversarial testing, and without Sylvia appearing in the

courtroom and standing before Petitioner and the jury when

offering her statement, because the court itself had deemed

the statement sufficiently trustworthy. The Washington

Supreme Court based its reliability finding on its view that

“Sylvia’s and [Petitioner’s] statements [to the police] are

virtually identical,” and hence the statements “interlock[].”

Crawford, 54 P.3d at 664; see also id at 663 (whenever an

accomplice’s statement to the police interlocks with the

defendant’s statement to the police, it is sufficiently reliable

to be admitted even when the accomplice is unavailable to

appear at trial) (citing State v. Rice, 844 P.2d 416, 427 (Wash.

1993)).

The Washington Supreme Court’s decision is but one

- example of the inconsistency and indeterminacy that plagues

the Roberts framework. Lower courts have proven unable to

serve the values of the Confrontation Clause within the

Roberts framework. That framework is too vague, allowing

too much judicial subjectivity to determine the scope of this

3

fundamental constitutional right in particular cases. This case

presents a particularly powerful example of the problem. For

this Court’s caselaw attempting to refine and apply the

Roberts framework leaves no room for doubt: an unavailable

accomplice’s custodial statement to the police investigating

the crime may not be admitted against a defendant merely

because that statement “interlocks” with the defendant’s own

custodial statement to the police. And “interlocking”

statements are hardly the only cases that have produced

inconsistent results under the Rodverts framework. It is thus

time for this Court to abandon Roberts.

In place of Roberts this Court should adopt what has been

called the “testimonial” approach. The testimonial approach

would prohibit the admission of out-of-court statements that

were made under circumstances which would lead an

objective witness reasonably to believe that the statement

would be available for use at a later trial (unless the defendant

has the opportunity to confront the witness). The testimonial

approach grows out of the Confrontation Clause’s central

purpose of preventing trial by affidavit. In addition, the

Confrontation Clause’s language more naturally supports the

testimonial view than the current reliability-based approach of

Roberts. Of particular importance to amici, the testimonial

approach would not require the trial court to make the

inherently subjective finding that a statement is or is not

trustworthy, a task practically guaranteed to produce

inconsistency even in what should be simple cases. Instead,

by focusing on the purpose for which the statement was made

and recorded, the most common cases become simple, and

even the hard cases would be more consistently resolved.

4

ARGUMENT

THE CONFRONTATION CLAUSE PROHIBITS THE

ADMISSION OF TESTIMONIAL OUT-OF-COURT

STATEMENTS AGAINST A DEFENDANT UNLESS

THE DEFENDANT HAS BEEN PROVIDED AN

OPPORTUNITY TO CONFRONT THE WITNESS.

The Confrontation Clause of the Sixth Amendment,

applicable to the States through the Fourteenth Amendment,

provides that “[iJn all criminal prosecutions, the accused shall

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

him.” U.S. Const., amend. VI; Pointer v. Texas, 380 US.

400 (1965). The Confrontation Clause’s mission 1s to

“advance the accuracy of the truth determining process in

criminal trials.” Tennessee v. Street, 471 U.S. 409, 415

(1985) (citing Dutton v. Evans, 400 U.S. 74, 89 (1970)). The

“confrontation” between the witness and the accused at trial is

not only a deeply felt requirement for a just criminal process,

Coy v. lowa, 487 U.S. 1012, 1017 (1988), but provides

concrete and practical aids for determining the truth.

Kentucky v. Stincer, 482 U.S. 730, 739 (1987) (referring to

the Confrontation Clause as a “functional” aid in the search

for truth); Maryland v. Craig, 497 US. 836, 862 (1990)

(Scalia, J., dissenting) (stating the Confrontation Clause

“guarantees specific trial procedures that were thought to

assure reliable evidence” would support criminal

convictions). As a review of recent lower court caselaw,

including this case, indicates, the Roberts framework too

often fails to ensure juries can evaluate the truthfulness of

witness testimony with the aids the Confrontation Clause was

intended to provide. By contrast, the testimonial approach

well arms the jury for its critical truth-finding task.

5

A. Confrontation As A Procedural Mechanism For

Discovering Truth.

A witness who provides testimony in court, standing before

the jury and in front of the accused cannot help but be

impressed with the potentially serious consequences of his or

her words. Requiring the witness to take an oath before

testifying is but one way the trial process impresses upon the

witness the importance of speaking truthfully. Craig, 497

U.S. at 845-46 (quoting California v. Green, 399 U.S. 149,

158 (1970)). By requiring the witness to stand before the

defendant, the confrontation right taps into “something deep

in human nature” that makes lying about the deeds of another

more difficult “to his face than behind his back.” Coy, 487

U.S. at 1017-20. And the jury, in whose presence all of this

takes place, has a full opportunity to observe the demeanor of

the witness as he or she delivers a claim in the defendant’s

presence that the defendant’s conduct warrants the censure of

the community and a loss of liberty. Green, 399 US. at 158.

Most prominently in the Anglo-American tradition, the

confrontation between witness and accused enables counsel

for the accused to cross-examine the witness, “the greatest

legal engine ever invented for the discovery of truth.” /d. at

158. Cross-examination enables the defendant to explore

inconsistencies between a witness’ testimony and other

evidence, probe any biases that may have led the witness to

distort the truth, and open lines of inquiry that the State, for

whatever reason, may have neglected. Zaylor v. /ilinois, 484

U.S. 400, 411-12 (1988) (stating “cross-examination{]

minimizes the risk that a judgment will be predicated on

incomplete, misleading, or even deliberately fabricated

testimony”). The highest court in South Carolina summed up

the practical effect of the right of confrontation nearly 160

years ago, and the words remain as true today as they were

then: The right of confrontation “expresses well the searching

process and practical test furnished and intended by this rule

of law; in order to correct any misconception of facts, to elicit

6

truth, and justify the severe retribution awarded in cases of

clear guilt.” State v. Campbell, 30 S.C.L. (1 Rich.) 124

(1844), available at 1844 WL 2558, at *1.

The “rigorous testing” the Confrontation demands of

witness testimony against the accused, Craig, 497 US. at

845, stands in sharp contrast to the “paradigmatic evil the

Confrontation Clause was aimed at,” Dutton, 400 US. at 94

(Harlan, J., concurring), government presentation of witness

testimony against the accused by affidavit. “(T]he particular

vice that gave impetus to the confrontation clause was the

practice of trying defendants on ‘evidence’ which consisted

solely of ex parte affidavits or depositions secured by the

examining [English] magistrates, thus denying the defendant

the opportunity to challenge his accuser in a face-to-face

encounter in front of the trier of fact.” Green, 399 US. at

156; Lilly, 527 US. at 124 (plurality opinion) (referring to the

“particular abuse [of] ... prosecuting a defendant through the

presentation of ex parte affidavits”), White, 502 U.S. at 362

(Thomas, J., concurring) (stating “the primary purpose of the

[Confrontation] Clause was to prevent the abuses that had

occurred in England”); Mattox, 156 U.S. at 242 (1895) (“The

primary object of the [Confrontation Clause] was to prevent

depositions or ex parte affidavits, such as were sometimes

admitted in civil cases, being used against the prisoner in lieu

of a personal examination and cross-examination of the

witness....”). When the government offers witness testimony

through affidavit, it avoids all the practical devices for

evaluating witness credibility the Confrontation Clause

intends the jury to have at its disposal.

When viewed from this combination of practical and

historical perspectives, the Confrontation Clause serves a

value beyond the important and much-recognized purpose of

enhancing the reliability of witness testimony and enabling

the jury to evaluate truthfulness. The Confrontation Clause,

like other provisions of the Bill of Rights, limits the power of

the State. The Confrontation Clause prevents the government

J

from presenting witness testimony against the accused in a

form other than in open court, where the accused may

“confront” the witness. This limits the power of the

government to shape witness testimony, intentionally or

otherwise, by exploring only certain lines of inquiry. 3

William Blackstone, Commentaries on the Laws of England

*373 (1768) (referring to the “artful or careless scribe” who

“may make a witness speak what he never meant”) This

limits the power of the government to influence the witness

through secret deals. And this limits the power of the

government to punish the defendant on the basis of an

accusation lodged by a witness unwilling to condemn the

defendant to his face. /d. at *373 (noting that a witness “may

frequently depose in private, which he will be ashamed to

testify in a public and solemn trial”). The lessons drawn from

the rejected ex parte affidavit procedure, lessons

constitutionalized in the Confrontation Clause, include the

recognition that untested witness testimony can mislead the

jury, undermining the search for truth even more than no

testimony at all.

| The Confrontation Clause thus imposes a procedural

limitation on the State: a defendant’s liberty may not be

restrained on the basis of witness testimony unless the

defendant has had the opportunity to confront the witness.

Craig, 497 US. at 845 (“Confrontation Clause ... ensure[s]

the reliability of the evidence against a criminal defendant by

subjecting it to rigorous testing in the context of an adversary

proceeding before the trier of fact.”). And this rule applies

even when the “truth” may well be better served by ignoring

the procedural burden the Confrontation Clause imposes.

Bruton, 391 U.S. at 133-34 (rejecting right of prosecution to

use codefendant’s confession implicating defendant at joint

trial even when jury finds codefendant guilty thus

demonstrating jury’s view that confession was reliable).

Petitioner's case represents the closest our adversarial

system of justice can come to reproducing the trial by

8

affidavit process. Lilly, 527 U.S. at 137 (plurality opinion)

(describing accomplice custodial confession as “implicat[ing]

the core concerns of the old ex parte affidavit practice”), /d.

at 143 (Scalia, J., concurring). Petitioner is a criminal

defendant who was convicted on the basis of a statement

given out of his presence to the police investigating the case

This statement was read to the jury despite the fact that the

accused never had the opportunity to confront the witness.

Any approach to the Confrontation Clause that permits such

evidence to be admitted against the accused fails on every

level. It fails at the historical level, by permitting the very

evil the Confrontation Clause was designed to prevent. It

fails at the political level, by restoring to the State the power

to obtain convictions based on untested witness testimony.

And it fails on the practical level, by permitting the jury to

hear testimonial evidence without providing it with the tools

it needs to determine the truth, Cases involving witness

statements to law enforcement investigating the crime are

thus the easy cases, cases involving these statements should

yield maximum consistency and protection if the

Confrontation Clause is operating properly.

B. The Roberts Framework Fails To Protect The

Values Of The Confrontation Clause Because Its

Inherent Subjectivity Produces Inconsistent

Results.

The Confrontation Clause, under this Court’s highly

subjective framework set forth in Ohio v. Roberts, supra, is

not functioning properly. To be sure, the outcome of this

Court’s caselaw has been consistent. This Court has

uniformly refused to allow witness statements inculpating the

defendant to be admitted against the accused at trial unless the

defendant has had the opportunity to “confront” the witness.

But even as this Court has been consistent in applying

Roberts to these paradigm statements requiring confrontation,

it has done so without stating a clear rule. Instead, it has

remained within the reliability-based framework of Roberts.

9

Asa result, even this Court’s consistently correct results have

sometimes turned on a single vote. Lee v. /ilinois, 476 US.

530 (1986) (five-to-four decision excluding codefendant

confession), /Jdaho v. Wright, 497 U.S. 805 (1990) (five-to-

four decision finding child statements to pediatrician lacked

sufficient indicia of reliability to be admissible) Thus this

Court’s own decisions reflect how the subjective reliability

inquiry will lead reasonable judicial minds to reach different

conclusions.

And lower courts applying Roberts are, in fact, reaching

widely divergent and irreconcilable conclusions. Lower

courts often admit into evidence witness statements to the

police inculpating the defendant, the very statements that

strike at the core of the Confrontation Clause and that this

Court has consistently recognized requires confrontation. The

failure of Roberts, and this Court’s caselaw applying it, to

guide the lower courts to the historically correct results, or

even to a consistent method of analysis, counsels in favor of

its replacement. Three Justices of this Court have suggested

that Roberts provides a misguided approach. Lilly, 527 U.S.

at 140-43 (Breyer, J., concurring); White, 502 US. at 362

(Thomas, J., concurring). This Court now squarely has the

question of Roberts’ continued utility and consistency with

the Sixth Amendment’s text, history and purposes before it

This Court should abandon the Roberts framework as a

failure on its own terms.

1. This Court's Decisions Uniformly Reject The Admission

Of Statements Functionally Equivalent To The Ex Parte

Affidavit. In Douglas, an accomplice of the defendant refused

to testify when called to the stand. With the accomplice still

on the stand, and in the presence of the jury, the prosecutor

then read a confession that had allegedly been signed by the

accomplice and that inculpated the defendant in the crime.

380 U.S. at 416-17. This Court, without qualification held

that “petitioner’s inability to cross-examine [the witness] as to

the alleged confession plainly denied him the right of cross-

10

examination secured by the Confrontation Clause.” dd at

419. In so stating, this Court remained consistent with the

absolute position it took with respect to the Phillipine Bill of

Rights (which contains a provision that 1s “substantially ”

the 6th Amendment”): the right of confrontation “intends to

secure the accused ... the right to be tried, so far as facts

provable by witnesses are concerned, by only such witnesses

as meet him face to face at the trial, who give their testimony

in his presence, and give to the accused an opportunity of

cross-examination.” Dowdell v. United States, 221 U.S. 325,

329-30 (1911) (emphasis added). And Dowdell had remained

true to this Court’s statement in Motes v. United States, 178

US. 458, 473-74 (1900), which referred to the “absolute rule

that the accused enjoy the right to “examine ] and cross-

examine[] before the jury” witnesses against him.

This Court’s firm approach in favor of the confrontation

procedure reflected its understanding of the importance of the

confrontation right to the accused. As this Court well

understands, the kind of secret, untestable testimony of a

witness that the Confrontation Clause was designed to prevent

can, if admitted, be “devastating” to a defense. Bruton, 39 l

US. 136. Indeed, such statements are so devastating that this

Court in Bruton prohibited their admission in a joint trial even

when the jury was pointedly instructed to disregard the

accomplice’s confession when considering the defendant's

guilt.

Roberts marked a shift away from the strict approach the

Court had followed with respect to out-of-court witness

statements, at least in word if not deed. In Roberts, this Court

permitted the prosecution to present at trial the statements ofa

witness against the accused made at the accused’s preliminary

hearing, where the accused had, in effect, cross-examined the

witness. In the process, this Court established a general

framework for analyzing when the Confrontation Clause

permits the admission of an out-of-court statement of a

witness against a criminal defendant. Under the Roberts

formula, the out-of-court statement is admissible if it bears

adequate “indicia of reliability.” Roberts, 448 U S. at 66.

Reliability can be inferred without more in a case where

the evidence falls within a firmly rooted hearsay excep-

tion. In other cases, the evidence must be excluded, at

least absent a showing of particularized guarantees of

trustworthiness.

Id.

This new framework imposed two subtle, but significant,

shifts in emphasis for Confrontation Clause analysis. First,

Roberts characterized “face-to-face confrontation at trial” as a

“preference,” not a constitutional command. /d. at 63. Craig,

497 US. at 849. Second, the Roberts framework placed

“reliability” alone at the center of the analysis. See also,

Craig, 497 U.S. at 845 (characterizing reliability as the

“central concern of the Confrontation Clause”). This Court

imposed this new framework to “respond[] to the need for

certainty in the workaday world of conducting criminal

trials.” Roberts, 448 US. at 66.

Despite Roberts’ promise of “certainty” in the application

of the Confrontation Clause, this Court has, since Roberts, on

four occasions been forced to consider how to apply the

Roberts framework to the most straightforward cases: those

involving a witness statement that functionally resembles the

ex parte affidavit. In each case, this Court has properly

rejected the admission of the statement. And the Court in its

most recent case most forcefully indicated that the

Confrontation Clause does not permit the admission of such a

Statement. But in each case, this Court has done so while

remaining within the Roberts framework, and thus on each

occasion this Court has allowed the possibility that the Clause

might, in the proper case. permit the admission of what is

effectively an ex parte affidavit.

Lee, the case most similar to Petitioner’s, involved the

admission of a codefendant’s confession to a double murder

12

because the confession was said, by the lower court, to

“interlock” with that of the defendant. Lee, 476 US. at 538-

39. This Court reversed, concluding that the “discrepancies

between the [confessions were] not insignificant.” /d. at 545.

Despite repeatedly emphasizing the “presumptive

unreliability” of codefendant confessions implicating the

accused, id. at 541-43, 545, the Court specifically stated that

that “presumption may be rebutted.” /d. at 543. The Court

did not, however, specify exactly what could overcome the

presumption. Rather, it merely noted that “when codefen-

dants’ confessions are identical in all material respects, the

likelihood that they are accurate is significantly increased.”

Id. at 545.

In Cruz, this Court held fast to the rule of Bruton and

refused to allow a codefendant’s confession implicating the

defendant to be admitted in a joint trial, even when the jury

was properly instructed not to consider the codefendant’s

confession as evidence against the defendant, and even when

the defendant had also confessed and the two confessions

“interlocked.” Yet, once again, the Court suggested that the

statement it excluded might conceivably be admitted

consistent with the Confrontation Clause. After explaining

why the fact that the confessions “interlocked” did not alter

the rule of Bruton, this Court said “the defendant’s con‘ession

may be considered at trial in assessing whether his

codefendant’s statements are supported by sufficient ‘indicia

of reliability’ to be directly admissible against him....” Cruz,

481 US. at 193-94.

Wright involved the admission of statements of the

defendant’s youngest daughter and alleged victim of abuse to

a pediatrician made while the daughter was in the police’s

protective custody. Wright, 497 U.S. at 809-10. This Court

held that the witness’s untested statement was not sufficiently

reliable to be admitted. /d at 826-27. But the Court reached

this conclusion not as a categorical matter, but quite the

opposite. The Court emphasized that the reliability of a

13

—

witness’s out-of-court statement should be evaluated in light

of “the totality of the circumstances,” id. at 826, thus making

clear that a case-by-case approach was commanded. This

Court did focus that inquiry somewhat, however, making

clear that the only circumstances relevant to the statement’s

reliability are those surrounding the making of the statement

itself, corroborating evidence cannot be used to support the

reliability of an out-of-court witness statement. /d. at 822-24.

Finally, this Court most recently decided in Lilly that a

codefendant’s confession to the police implicating himself

and the defendant in a crime could not be admitted against the

defendant. This Court went further toward a categorical rule

than it had since instituting the Roberts framework, stating

that:

It is highly unlikely that the presumptive unreliability

that attaches to accomplices’ confessions that shift or

spread blame can be effectively rebutted when the

statements are given under conditions that implicate the

core concerns of the old ex parte affidavit practice—that

is, when the government is involved in the statements’

production, and when the statements describe past

events and have not been subjected to adversarial

testing.

Lilly, 527 U.S. at 137 (plurality opinion). That is, when it

comes to statements that function like ex parte affidavits

(most commonly, the custodial confession of a codefendant),

this Court has adopted something just short of a categorical

rule against their admission. According to Lilly, such

Statements, even though against penal interest under

recognized hearsay law, are not a “firmly rooted” hearsay

exception that might be admitted on that ground under

Roberts. Lilly, 527 U.S. at 134 (plurality opinion). Instead, if

they are to come into evidence at all, it would have to be

under the second prong, the amorphous residual

trustworthiness prong. And with respect to general reliability,

14

this Court has indicated that such statements are “highly

unlikely” to be permissible. /d. at 137 (plurality opinion).

Indeed, after Lilly, it is difficult to imagine what “highly

unlikely” circumstances would render statements similar to ex

parte affidavits sufficiently reliable to warrant their

admission. For Lilly rejected the suggestion in Lee and C ruz

that a codefendant’s confession might draw sufficient

reliability from its overlap with the defendant's own

admissible confession to be admissible under the Roberts

framework. Relying on its previous decision in Idaho V.

Wright. this Court flatly stated that it had “squarely rejected

the notion that ‘evidence corroborating the truth of a hearsay

statement may properly support a finding that the statement

bears particularized guarantees of trustworthiness” Lilly,

§27 US. 137-38 (plurality opinion) (quoting Wright, 497 US.

at 822). Since a defendant’s confession that “interlocks” with

a codefendant’s confession is nothing but a particular item of

“evidence corroborating the truth of [the] hearsay statement”

(namely, the codefendant’s confession), under Lilly and

Wright courts must disregard the defendant's own confession

when determining whether the codefendant’s statement 1s

sufficiently reliable to be admitted. No matter how much the

confessions “interlock” and no matter how much other

evidence corroborates the ex parte affidavit-like statement, all

of that is “irrelevant” to admissibility. Lilly, 527 U.S. at 137

(plurality opinion).

Despite all of this, the plurality opinion in Lilly nowhere

states that custodial confessions of an accomplice are always

inadmissible unless the accomplice testifies at trial To the

contrary, by once again reaffirming the Roberts framework,

and by emphasizing that “hearsay evidence used to convict a

defendant must possess indicia of reliability by virtue of its

inherent trustworthiness,” Li//y, 527 US. at 138 (plurality

opinion), this Court once again left open the possibility that

i)

even an accomplice’s custodial confession might, in the

appropriate circumstances, pass the test.”

2. This Court's Adherence To The Roberts Framework

Causes Confusion In The Lower Courts. Despite the fact that

this Court has not indicated what facts will render an absent

codefendant’s statement to investigators admissible consistent

with the Confrontation Clause, the lower courts, relying on

the Roberts framework, all too frequently allow such

statements to be admitted against the accused What should

be a straightforward application of the Confrontation Clause

has been, in the lower courts, anything but. Lower courts,

engaging in the inherently subjective inquiry into the

“reliability” of statements that resemble the ex parte affidavit

have produced results that are inconsistent, and at odds with

the core values and purpose of the Confrontation Clause

This very case presents a prime example. Sylvia

Crawford’s statement was produced under circumstances

closely resembling the ex parte affidavit procedure. Yet the

Washington Supreme Court, speeding past the fact that her

Statement was “presumed unreliable,” focused its inquiry on

the search for “indicia of reliability” that would permit the

statement to be introduced. State v. Crawford, 54 P.3d 656,

663 (Wash. 2002). That is, despite this Court’s repeated

emphasis on the evil of the ex parte affidavit procedure, the

Washington Supreme Court remained focused on the Roberts-

mandated quest for “indicia of reliability” And all the

Washington Supreme Court needed to satisfy itself that the

statement was sufficiently “reliable” was the overlap between

Sylvia's statement and Petitioner’s confession. It is hard to

imagine a more clear indication of how malleable the Roberts

* Justice Scalia’s concurring opinion rejects the Roberts approach and

accepts that custodial accomplice confessions are automatically barred

under the Confrontation Clause Lilly, 527 US. at 143 (Scalia, J.

concurring)

16

“reliability” inquiry is, and how poorly it serves the values of

the Confrontation Clause.

Numerous other cases have followed a similar nanger

Lower courts pay little heed to the historical incongruity :

admitting what are the functional equivalents of - ge

affidavits, and press ahead with the search for ma icia O

reliability.” The “presumption” of unreliability has lost oo

meaningful force after 23 years of subjective se bccn

reliability. It is little more than a requirement ng” e Sta ;

characterize the statement as possessing as many actors a

possible that courts have in the past identified as pe ;

statement’s reliability. The result is that absent codefen an

statements that even this Court’s caselaw clearly “gerne

should be excluded from evidence, are admitted, Bg

devastating effect. Calvert v Wilson, 288 F 3d pee :

(6th Cir 2002) (finding state court s admission of c a en-

dant custodial statement, made in response to police “or S

leading questions, violates clearly established federal law as

determined by this Court)

A review of the cases shows just how malleable the various

factors can be. In Michigan, if a codefendant s statement was

made “voluntarily” to the police, and if the codefendant —

free to leave throughout the interview, then the recannrn

inculpating the defendant and the codefendant 1s a — >

azainst both People v. Schutte, 613 N W 2d 370, -

(Mich Ct. App. 2000). Likewise in Illinots People :

Thomas, 730 NE2d 618, 626 (Ill App. Ct ore n

Oregon, however, it is fine mot to be free to leave, sO me as

the court determines that the witness is still = ing

“voluntarily” to the investigating officer State v song

950 P 2d 348, 352 (Or. Ct. App. 1997). Wyoming ng

line with Oregon, at least when the Statement was Pos

volunteered, and continued “voluntarily” after _ 2

warnings were issued. Brown v. State, 953 P.2d 1170, -

80 (Wyo. 1998)

17

Michigan, Illinois and Oregon all prefer statements

emerging from the defendant himself without prodding by

questions from the officer, though Oregon thinks it is fine to

ask a single “basic, non-leading question.” Franco, 950 P.2d

at 352; Schutte, 613 NW.2d at 376 (emphasizing that

codefendant statement was not in response to police

questioning), Thomas, 730 N.E.2d at 625. The Eighth Circuit

thinks that statements made in response to a series of

questions are fine, if the questions are not leading and the

responses are in the form of a narrative. United States v

Papajohn, 212 F.3d 1112, 1120 (8th Cir. 2000). The Seventh

Circuit will even allow a statement drafted by the

government, and adopted by the codefendant, to be admitted

against the defendant. United States v. C entracchio, 265 F 3d

518, 529 (7th Cir. 2001) (approving admission of

codefendant’s plea allocution despite fact that “prosecutor

recited the actual content of the plea agreement and [the

witness] just acknowledged with a short reply that he agreed

with it”)

In Michigan, Oregon, and Wyoming it is helpful if the

codefendant was not given any reason to believe his statement

to the police would result in lenient treatment Franco, 950

P 2d at 352; Schutte, 613 NW 2d at 376, Brown, 953 P 2d at

1179-80 In Illinois, it is helpful also, but perhaps not so

harmful if the person offering the statement was “trying to

gain favor or leniency.” Thomas, 730 NE2d at 625

(reliability of such a statement is merely “diminished”) In

Ohio, too, a statement made to the police after a promise of

leniency would be unreliable, but if the police told the witness

only that after he confesses the State might “cut him some

slack,” then the statement can be reliable. State v Marshall,

737 NE2d 1005, 1009 (Ohio Ct App. 2000) Such a hint,

short of a promise of leniency, weighs heavily against

admission in the Tenth Circuit. United States v Gomez, 19]

F 3d 1214, 1223 (10th Cir 1999) A suggestion of leniency

renders a statement unreliable in the Seventh Circuit, Umited

18

States v. Castelan, 219 F.3d 690, 695 (7th Cir. 2000), unless

the statement that is made in the hopes of obtaining leniency

is a plea allocution, in which case it is admissible,

Centracchio, 265 F.3d at 529. The Second Circuit, too,

routinely approves the admission of a codefendant’s plea

allocution, even though it is designed in part to generate more

lenient treatment from the prosecution. United States v.

Dolah, 245 F 3d 98, 105 (2d Cir. 2001).

The time lag between the witness’s statement to authorities

and the incident being described has also generated different

views. The general view appears to be that the sooner the

better, but how soon is soon enough? Michigan seeks the

minimum time-lag. Schutte, 613 N.W 2d at 376 (expressing a

preference for statements to investigating officers made

“contemporaneously with the events referenced”). The Tenth

Circuit will accept a statement made “soon after” the events

being described occurred, Gomez, 191 F.3d at 1222-23, as

will Colorado, Stevens v. People, 29 P.3d 305, 315 (Colo.

2001). In Illinois, the same day is good enough. Thomas,

730 NE2d at 626. The Second Circuit’s plea allocution

cases seem indifferent to the time lag between incident and

statement Dolah, 245 F 3d at 105 (citing cases)

Most courts insist that a statement to an investigating

officer must be “genuinely incriminating,” by which they

appear to mean that it does not minimize the witness's role in

the crime or attempt to shift blame to the defendant. Stevens,

29 P 3d at 315: Brooks v. State, 787 So.2d 765, 776-77 (Fla

2001), Gabow v. Commonwealth, 34 SW 3d 63, 78-79 (Ky

2000); Barrow v. State, 749 A.2d 1230, 1244 (Del 2000),

Earnest v. Dorsey, 87 F 3d 1123, 1134 (10th Cir. 1996), State

v. Sheets, 618 NW. 2d 117, 124-25 (Neb. 2000), Brown, 953

P 2d at 1179 (admitting only portion of statement that was

“equally incriminating” of defendant and codefendant) But

as Petitioner's case rather dramatically illustrates, even this

area of agreement is not uniform. For Sylvia Crawford's

confession was admitted against the defendant despite the fact

ee

19

that it unambiguously minimizes her own role in the crime as

compared with Petitioner’s insofar as it asserted that

petitioner, and not Sylvia, stabbed the victim. To

Washington, if confessions “interlock” it does not matter that

the absent codefendant’s confession shifts blame. See also

Wright v. State, 440 S E.2d 7, 9 (Ga. 1994). Likewise, and

perhaps worse, the Wisconsin Court of Appeals has held that

a murder suspect’s statement to the police inculpating the

defendant as the killer, thus shifting blame away from

himself, was sufficiently reliable based only on the court’s

determination (drawn from the police officer’s description of

the suspect’s demeanor when giving the statement) that the

Suspect was speaking with a truthful state of mind when he

inculpated the defendant. State v. Murillo, 623 NW 2d 187,

191-93 (Wis. Ct. App. 2000).

A variety of cases have also listed other factors These

factors include the specificity of the statement (the more

specific the more reliable), Stevens, 29 P. 3d at 317: Gomez,

191 F.3d at 1222-23, Brown, 953 P. 2d at 1180, whether the

person had a motive to distort the truth, Crawford, 54 P 3d at

661 n3, Stevens, 29 P.3d at 317-18; Gomez, 191 F 3d at

1222, Schutte, 613 NW 2d at 376, whether an attorney was

present when the statement was given (if the attorney is

present, more reliable), People vy. Campbell, 721 NE2d

1225, 1230 (Ill. Ct. App. 1990), and whether the person was

mentally unstable wuen giving the statement to the police,

Stevens, 29 P 3d at 318

The multiplicity of factors relevant to the reliability inquiry

serves only to make the inquiry more malleable The

Colorado Supreme Court’s decision in Stevens illustrates the

point dramatically Though the court said that the closeness

in time of a statement to the police and the incident described

points toward a statement’s reliability, as does the spontaneity

of the statement, the court in that case found reliable a

statement made in response to leading questions from the

police more than two years after the crime took place because

20

the statement was highly detailed and the court was unable to

detect any significant motive for the codefendant to inculpate

the defendant. 29 P3d at 316-18. And comparing the

Seventh Circuit’s decisions in Centracchio and Castelan

indicate how on one day a factor can be decisive, Castelan,

219 F 3d at 695 (suggesting that if statement is made in hopes

of obtaining leniency, it is unreliable), but on another day it

can be pushed aside, Centracchio, 265 F3d at 529

(acknowledging that codefendant’s plea allocution was made

in hopes of obtaining leniency, but admitting it against

defendant anyway) The shifting use which the courts make

of the lengthy list of factors potentially relevant to the

reliability inquiry undermines confidence in the ability of

Roberts actually to ensure the trustworthiness of the

statements being admitted against defendants

The reliability framework Roberts imposed on _ the

Confrontation Clause has thus failed in its principal objective

to provide “certainty in the workaday world of conducting

criminal trials” Roberts, 448 US. at 66 With hundreds of

trial courts around the nation applying varying vague sets of

criteria subjectively to malleable sets of facts, the Roberts

framework produces the antithesis of certainty In fact,

Roberts in practice is less a framework than a hope

Specifically, the Roberts framework expresses a hope that

trial courts, reviewing the specific facts of the cases before

them from their position close to the evidence and the parties,

would be able to distinguish between reliable and unreliable

evidence, and thus promote accuracy in the trial process

Wright, 497 US. at 822 (stating “courts have considerable

leeway in their consideration of appropriate factors’)

The Roberts framework assumed that lower courts would

settle on criteria that would be readily and consistently

applied But it has not. As described above, trial courts and

appellate courts, federal and state courts, are apt to gauge the

reliability of the same facts differently This places an

unnecessary strain on the criminal justice process as the

|

|

21

parties and the court spend time and resources trying to

decide whether a codefendant’s confession was sufficiently

reliable to be admitted

The multi-factored reliability approach Roberts imposed

turns every effort by the prosecution to admit hearsay

testimony under the residual trustworthiness prong of Roberts

into a time consuming and potentially complicated pre-trial

hearing : If an unavailable witness’s demeanor, voluntariness

and motive for lying, among other things, are all relevant for

determining the admissibility of his out-of-court statement,

then the trial court would have to acquaint itself with all the

circumstances surrounding the statement before ruling on its

admissibility That task is made especially difficult because

the witness himself or herself is, by definition, unavailable

Instead, the trial court must rely upon the individual who

heard or recorded the out-of-court statement to recite not only

what was said, but detail all the nuances that play a part in

evaluating credibility, a process that hardly inspires

confidence See, e.g, Murillo, 623 NW 2d at 191-93. In

some Cases, this pretrial hearing can balloon into a mini-trial

in which the trial judge is forced to determine whether the

accusation contained in the out-of-court statement is itself

true before deciding whether to permit the jury to hear it

Richard D. Friedman, Confrontation: The Search for Basic

Principles, 86 Geo. LJ. 1011, 1027-28 (1998)

The trial process is further burdened by the heightened

prospect of error, and consequent appellate reversal, that a

subjective rule entails Without meaningful objective bases

for analysis, trial courts are in a weak position to predict how

appellate courts will view the reliability of a particular

statement in light of all the reliability factors Appellate

reversal will often require retrial, a heavy burden on the

judicial system

The Roberts framework imposes these strains on the

criminal justice system without producing any increase in the

confidence of the truthfinding process The subjective

22

evaluation of reliability by a judge is no substitute for the

time-honored process of adversarial testing. It is time to

abandon Roberts

C. The Testimonial Approach Provides Greater

Certainty And Is More Consistent With The Text

And Values Of The Confrontation Clause.

Three members of this Court have already indicated that

they are willing to review whether the Roberts approach

should be abandoned Jilly, 527 US. at 142-43 (Breyer, J,

concurring), White, 502 US at 365-66 (Thomas, J,

concurring, joined by Scalia, J.) A variety of legal scholars,

too, believe the Roberts framework ill serves the purposes of

the Confrontation Clause Penny J. White, Rescuing the

Confrontation Clause, 54 $C. L. Rev. $37, 619 (2003), John

G. Douglass, Confronting the Reluctant Accomplice, \0\

Colum L. Rev. 1797 (2001), Friedman, supra, Akhil R

Amar, 7he Constitution and Criminal Procedure 130-3)

(1997), Margaret A. Berger, The Deconstitutionalization_ of

the Confrontation Clause: A Proposal for a Prosecutorial

Restraint Model. 76 Minn L. Rev 557 (1992) Amici

respectfully suggest that this Court take this opportunity to

adopt a new framework that makes the common cases easy to

resolve and that preserves the values of the Confrontation

Clause

The Confrontation Clause should be read to prohibit the

admission of any out-of-court festimomai statement unless the

defendant has the opportunity to confront the witness Not

every statement uttered, and later used at trial, is testimomal

As discussed below, an out-of-court statement is testimonial

only when the circumstances indicate that a reasonable

declarant at the time would understand that the statement

would later be available for use at a criminal tnal This

understanding of the Clause flows naturally from the

paradigm of the ex parte affidavit that the Confrontation

Clause was designed to prevent Richard D Friedman &

Bridget McCormack, Dial-In Testimony, 150 U Pa L. Rev

23

1171, 1240-41 (2002). If the most fundamental point of the

Confrontation Clause is to prevent the State from securing a

conviction on the basis of witness testimony provided to it in

private, without providing the defendant the opportunity to

confront the witness, then defining the category of excluded

Statements to encompass that evil serves the purpose of the

Clause perfectly

This approach derives not only from the purposes the

Confrontation Clause was meant to serve It also fits the

language of the Confrontation Clause better than the Roberts

reliability-based approach and finds support in the results of

this Court’s caselaw, if not its reasoning This Court’s

decision in Roberts was driven in part by a concern that if the

Confrontation Clause’s language were “read literally, it would

require, on objection, the exclusion of any statement made by

a declarant not present at trial” Roberts, 448 US at 63,

Craig, 497 US at 849. This fear is born of a misreading of

the term “witness” in the Confrontation Clause. While every

person who appears in court is a “witness,” not every

statement made outside of court is made as a “witness,” even

if it is later introduced into evidence at a trail

This Court’s caselaw readily provides examples of out-of-

court statements by individuals given not as a “witness” to a

crime, but rather as a medical patient, White, 502 US at 350,

Or a coconspirator furthering a conspiracy, Bourjaily v

Umited States, 483 US. 171 (1987), United States v Inadi,

475 US 387, 400 (1986), Wright, 497 US at 820

(discussing excited utterances) Such statements, at least at

the time they are made, are unrelated to any criminal

investigation, and hence should not be understood to be

statements by a “witness ”’

* Further, the Confrontation Clause does not absolutely bar the

admission of an out-of-court testimonial statement. It only bars such

statements when the accused 1s denied his mght to confront the witness

Thus, the testimonial approach does not threaten the long line of cases.

24

On the other hand, when an individual, especially one

suspected of a crime, approaches law enforcement officials,

and provides information incriminating another individual

(and even perhaps himself or herself), that individual has

assumed the role of “witness” within the meaning of the

Confrontation Clause For that person has spoken under

circumstances which he or she should reasonably expect will

lead the State to punish the accused person. And it is that

statement—suggesting that the State should condemn the

accused as a criminal and restrain his or her liberty—that the

Confrontation Clause insists must run the rigors of adversarial

testing in open court’ This Court’s consistent refusal to

permit absent codefendant confessions to be admitted against

an accused fits comfortably within the testimonial approach

as defined here Jilly, 527 US. at 137 (plurality opinion),

Cruz, 481 US at 193-94, Lee, 476 US. at 545, Bruton, 391

US. at 133-34, Douglas, 380 US. at 419, Likewise, this

Court’s decision in Wright, which involved a victim's

statement to a pediatrician who was acting not as a treating

physician (as in White), but as an investigator fits the

testimonial approach as well Accepting the testimonial view,

then, would not require this Court to alter the results of any of

its prior cases, just this Court’s, and, most critically, the lower

courts’, reasoning going forward

Finally, beyond textual and historical coherence, beyond its

ability to better serve the values of the Confrontation Clause,

the testimonial rule produces more reliable and consistent

results As already noted, the all too typical case involving a

codefendant’s confession implicating the defendant becomes

easy to resolve consistent with the historical exclusion of such

statements

dating back to Reynolds v. United States, 98 US. 145, 158-61 (1878) and

Mattox, 186 US at 240-44, involving the admission at tral of pnor

testimony when the defendant previously confronted the witness

25

Further, it becomes much easier to predict the outcomes of

cases under this approach based on the knowledge of a very

few set of objective facts By and large, statements made to

law enforcement officials about a crime will be testimonial

And by and large, statements made to friends, relatives,

accomplices or anyone outside of criminal justice system will

not be testimonial

There will be exceptions to these broad and general rules,

of course. A witness to a crime may make a statement to a

friend knowing that the friend will subsequently contact

police. Such a statement is aimed at law enforcement and

would therefore be testimonial And calls to 911 call for

some judgment in the application of the testimonial approach

Friedman & McCormack, supra at 1224-25 That is because

911 serves a dual role in our society It is both a component

of our law enforcement system (suggesting that statements to

911 are testimonial) and an emergency response system

(suggesting that statements to 911 are not testimonial)

Whether a particular statement made to a 911 dispatcher was

testimonial would depend on which capacity the caller was

using when contacting the system The important point is that

the difficult cases will be the exceptions, whereas under the

Roberts framework difficult cases are common Further

under Roberts, the resolution of the difficult cases is

inherently subjective and turns on how a particular court

weighs the relevant mix of facts, which in many cases point in

opposite directions Under the testimonial approach, the

difficult cases are resolved by a more focused inquiry, and an

objective one as well what did the speaker reasonably believe

would be done with his or her statement

In the end, amici suggests that the practical benefits of

abandoning Roberts for the testimonial approach counsel

strongly in its favor The kind of evidence that is too often

erroneously admitted against criminal defendants can be

devastating to a defense A rule that reliably prevents such

evidence from being introduced will enhance both the

26

administrative efficiency of the criminal justice system, and

its fairness. In comparison to the prevailing alternative, it is

clearly preferable.

CONCLUSION

The judgment of the Supreme Court of Washington should

be reversed

Respectfully submitted,

DAVID M. PORTER JEFFREY T. GREEN*

NATIONAL ASSOCIATION OF ROBERT N. HOCHMAN

CRIMINAL DEFENSE LAWYERS MATTHEW J. PRESS

801 I Street, 3rd Floor SIDLEY AUSTIN BROWN &

Sacramento, CA 95814 WoOopD LLP

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July 24, 2003 * Counsel of Record