Amicus Curiae Brief — Crawford v. Washington

2UprEeme Count Uj S

FILED |

| SE> 222003

No. 02-9410 Lorrice OF THE CLERK |

In the Supreme Court of the Gnited States

MICHAEL D. CRAWFORD, PETITIONER

STATE OF WASHINGTON

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF WASHINGTON

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

THEODORE B. OLSON

Solicitor General

Counsel of Record

CHRISTOPHER A. WRAY

Acting Assistant Attorney

General

MICHAEL R. DREEBEN

Deputy Solicitor General

SRI SRINIVASAN

Assistant to the Solicitor

General

JOEL M. GERSHOWITZ

Attorney

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

The United States will address the following ques-

tion:

Whether the Confrontation Clause imposes a cate-

gorical prohibition against the admission of hearsay

statements that are testimonial in nature.

(I)

TABLE OF CONTENTS

ee

Constitutional provison involved ............c0ssserereseeesseneneneeenees

Ea AUAAAAARARARAATERAREE

i

Argument:

The Confrontation Clause does not impose a categorical

prohibition against the admission of the out-of-court

testimonial statements of an unavailable witness ............

A. The Confrontation Clause governs the admissibility

of out-of-court statements only when the state-

ments are testimonial in MAtUTe .................csesesererenerens

1. A declarant acts as a “witness against” the

defendant within the meaning of the Confronta-

tion Clause when giving testimony or its

CGDUGTE cccccnsczseseenssnsnseszstessseqenseenenerssenesescensnsesneness

2. The historical basis of the right of confronta-

supports limiting the Confrontation Clause to

CestReRSRTS RTINT cccnnccessnsnessseneeeee

3. The assumption in Roderts that the Confronta-

tion Clause is coextensive with the hearsay ~

rules is unsupported by the evolution of

hearsey law and the confrontation right .............

B. The Confrontation Clause does not bar the

admission of testimonial hearsay when the witness

is unavailable to testify and the statement is

ey

1. The Court has rejected a categorical rule

when construing the right of confrontation

and other rights protected by the Sixth

(IIT)

new 4

10

12

17

18

IV

Table of Contents—Continued: Page

2. A categorical rule of inadmissibility would

conflict with the objective of the Confronta-

tion Clause to promote the truth-seeking

function of criminal trials ................c.ssssseeeeeeenees 21

GUREIIEED anus 28

TABLE OF AUTHORITIES

Cases:

Barber v. Page, 390 U.S. 719 (1968) .... 14, 16

Berger v. California, 393 U.S. 314 (1969) ........ccccccceceeeeees 14

Bourjaily v. United States, 483 U.S. 171 (1987) ....... 7, 15, 18

Bridges v. Wixon, 326 U.S. 135 (1945) 14

Brookhart v. Janis, 384 U.S. 1 (1966) 14, 16

Bruton v. United States, 391 U.S. 123 (1968) ............... 14, 16

California v. Green, 399 U.S. 149 (1970) .............. 8, 14, 19, 24

Calvert v. Wilson, 288 F.3d (6th Cir. 2002) ................ 16-17

Chambers v. Mississippi, 410 U.S. 284 (1973) .............. 18, 21

Cook v. McKune, 323 F.3d 825 (10th Cir. 2003) ............... 16

Coy v. lowa, 487 U.S. 1012 (1988) 10, 19

Delaney v. United States, 263 U.S. 586 (1924) ................. 14

Delaware v. Van Arsdall, 475 U.S. 673 (1986) ................. 19

Daz v. United States, 223 US. 442 (1912) 14

Douglas v. Alabama, 380 U.S. 415 (1965) 14, 16

Dowdell v. United States, 221 U.S. 325 (1911) «0... 14

Dutton v. Evans, 400 U.S. 74 (1970) .............. 8, 14, 21, 24, 25

Idaho v. Wright, 497 U.S. 805 (1990) 0.0... 7, 10, 15, 16,

23, 24, 25

Kentucky v. Stincer, 482 U.S. 730 (1987) 22

Kirby v. United States, 174 U.S. 47 (1899) 14

Lee v. Illinois, 476 U.S. 530 (1986) 15, 16, 22, 25, 26

Lilly v. Virginia, 527 U.S. 116 (1999) 7, 15, 16, 22, 25

Mancusi v. Stubbs, 408 U.S. 204 (1972)... 14,24, 25

V

Cases—Continued: Page

Maryland v. Craig, 497 U.S. 836 (1990) ..........0ccnenee 9, 18,

19, 20, 21, 22

Mattox v. United States, 156 U.S. 237 (1895) ............... 12, 14,

15, 18, 23, 24

McCandless v. Vaughn, 172 F.3d 255 (3d Cir. 1999) ....... 17

Michigan v. Lucas, 500 U.S. 145 (1991) ...--...c-cececeeneeneens 21

Mickens v. Taylor, 535 U.S. 162 (2002) .........-..-.cccceceeeeevees 20

Motes v. United States, 178 U.S. 458 (1900) .................. 14, 16

Ohio v. Roberts, 448 U.S. 56 (1980) ............cccccceenenenees 5, 6, 15,

17, 24, 25, 27

Padilla v. Terhune, 309 F.3d 614 (9th Cir. 2002) ............. 16

Patton v. Freeman, 1 NJ.L. 113 (NJ. 1791) .....ccccccccceeees 13

Perry v. Leeke, 488 U.S. 272 (1989) ......-.--.-eccereeeeeseeneeneenees 20

Pointer v. Texas, 380 U.S. 400 (1965) ..........ccccceee 13-14, 16

Reynolds v. United States, 98 U.S. 145 (1878)... 14

Roberts v. Russell, 392 U.S. 293 (1968) ..............ceceevee 14, 16

Robertson v. Baldwin, 165 U.S. 275 (1897) .............cc 14

Ryan v. Miller, 303 F.3d 231 (2d Cir. 2002) ..............000- 16

Salinger v. United States, 272 U.S. 542 (1926) ................. 12

Snyder v. Massachusetts, 291 U.S. 97 (1934) ............ 14, 18-19

Taylor v. Illinois, 484 U.S. 400 (1988)... 20, 21

Tennessee v. Street, 471 U.S. 409 (1985) .................. 6, 21, 24

United States v. Cronic, 466 U.S. 648 (1984) ................... 20

United States v. Hubbell, 530 U.S. 27 (2000) .................. = g

United States v. Inadi, 475 U.S. 387 (1986) ............ 15, 21-22

United States v. Scheffer, 523 U.S. 303 (1998) .................. 27

United States v. Westmoreland, 240 F 3d 618 (7th

ee 17

White v. Illinois, 502 US. 346 (1992) ........ 1, 8, 9, 13, 16, 24

Constitutjon and rule

U.S. Const. Amend. VI 6, 8, 9, 10, 12, 17, 18, 20

Compulsory Process Clause - 20, 21

Confrontation Clause passim

Vi

Rule—Continued: Page

a a ee 26

Miscellaneous:

3 W. Blackstone, Commentaries on the Law of England

GRURED cccsseremnsnsmsssescecnnmsssssssnnmamnensneseneseseneediemsmmemmemnanensnassess 13

9 W. Holdsworth, History of the English Law (1926)... 10, 11

D. Pollitt, The Right of Confrontation: Its History and

Modern Dress, 8 J. Pub. L. 381 (1959) .........ccccccceeoee 10, 11, 12

1 B. Schwartz, The Bill of Rights: A Documentary

ee 12

1 J. Stephen, A History of the Criminal Law of

ae 11

J. Story, Commentaries on the Constitution of the

NTI cosiscerinnnscstatentprnseiiesiinadisantinineninstitiatinteas 12

2 N. Webster, An American Dictionary of the English

ne 4

J. Wigmore, Evidence (Chadbourne rev. ed. 1974):

WORE casniciebreenaaresndennitiensiaibitaiiaiaeceaeeaptiititainaatataiiaatiatta 13

RUUD deesscsetemmasnstentesietietaniinsbleeinanbineennains 10, 11-12, 13, 14, 24

In the Supreme Court of the United States

No. 02-9410

MICHAEL D. CRAWFORD, PETITIONER

v.

STATE OF WASHINGTON

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF WASHINGTON

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

INTEREST OF THE UNITED STATES

This case presents the question, inter alia, whether

the Confrontation Clause imposes a categorical prohibi-

tion against the admission of hearsay statements that

are testimonial in nature. Because that question has

substantial implications for the conduct of federal

criminal trials, the United States has a significant

interest in the Court’s disposition of this case. The

United States, in its brief as amicus curiae in White v.

Illinois, 502 U.S. 346 (1992), argued that this Court

should adopt an approach that limits application of the

Confrontation Clause to out-of-court statements that

constitute testimony or its functional equivalent. The

United States argues in this case that, as to such

testimonial statements, the Confrontation Clause does

not impose an absolute rule of inadmissibility.

(1)

2

CONSTITUTIONAL PROVISION INVOLVED

The Confrontation Clause of the Sixth Amendment of

the United States Constitution provides: “In all

criminal prosecutions, the accused shall enjoy the right

* * * to be confronted with the witnesses against

him.”

STATEMENT

1. On August 5, 1999, petitioner stabbed Richard

Rubin Kenneth Lee at Lee’s apartment. Petitioner's

wife, Sylvia Crawford, was with him at the time. Later

that evening, police arrested petitioner and Sylvia and

interrogated them separately. Petitioner and Sylvia

each gave a tape-recorded statement describing the

circumstances of the stabbing, and then gave a second

tape-recorded statement several hours later. J.A. 2-3.

In their initial statements, petitioner and Sylvia both

told the officers that Lee had invited them to his

apartment earlier in the day, and that, at some point

during the evening, petitioner left the apartment to

purchase alcohol. Both petitioner and Sylvia said that,

upon returning to the apartment, petitioner found Lee

making sexual advances toward Sylvia, and petitioner

stabbed Lee in an ensuing altercation. J.A. 3, 20-21.

In their second statements, petitioner and Sylvia

gave a different account of the events. Both said that

Lee had sexually assaulted Sylvia several weeks

beforehand rather than on the evening of the stabbing,

and that they went to find Lee after petitioner became

angry upon the mention of Lee’s name. Both also

stated that Sylvia directed petitioner to Lee’s apart-

ment, and that, after the three spoke for a short time,

petitioner stabbed Lee. J.A. 3, 21.

Petitioner, when asked whether he had seen any-

thing in Lee’s hands, indicated that he thought Lee had

oo

-

3

reached for an object “right before everything hap-

pened. He was like reachin’, fiddlin’ around down here

and * * * this is just a possibility, but I think, I think

that he pulled somethin’ out and I grabbea for it and

that’s how I got cut.” J.A. 18. Sylvia, after being asked

whether Lee fought back from the assault, stated that

Lee “lifted his hand over his head maybe to strike [peti-

tioner’s] hand down or something and then * * * put

his right hand in his right pocket . . . took a step back

. . . [Petitioner] proceeded to stab him . . . then his

hands were like * * * openarms . . . with his hands

open and he fell down.” J.A. 16. Sylvia said that she

did not see anything in Lee’s hands when he held them

open. J.A. 17. Sylvia also told the officers that pe-

titioner was “infuriated” and “past tipsy” and had said

before the incident that Lee “deserve[d) a ass

whoopin.” J.A. 14.

2.a. Petitioner was charged with attempted first de-

gree murder and first degree assault. At trial, peti-

tioner took the stand and argued that he acted in self-

defense. He invoked his marital privilege under state

law to prevent Sylvia from testifying against him. J.A.

3.'

The State sought to offer Sylvia’s second tape-

recorded confession in its case-in-chief as evidence re-

butting petitioner’s claim of self-defense. Petitioner ob-

jected, arguing that admission of the statement would

violate his rights under the Confrontation Clause. The

trial court overruled petitioner’s objection and admit-

ted Sylvia’s second statement. The State also intro-

duced Sylvia’s first statement for the non-hearsay pur-

1 Under Washington law, a spouse can prevent the other

spouse from testifying by declining to consent to the testimony.

See J.A. 4, 6, 22.

4

pose of showing that petitioner and Sylvia initially lied

to officers. The jury ultimately found petitioner guilty

on the assault charge. J.A. 3-4, 11-12.

b. The Washington Court of Appeals reversed, con-

cluding that admission of Sylvia’s second statement

violated the Confrontation Clause. J.A. 20-37. The

court rejected the State’s argument that the similarity

between petitioner and Sylvia’s second statements

rendered Sylvia’s confession sufficiently reliable to

permit its admission. In the court’s view, the state-

ments “differ regarding whether Lee was armed when

[petitioner] stabbed him,” in that petitioner’s statement

“asserts that Lee may have had something in his hand”

whereas Sylvia’s statement “has Lee grabbing for

something only after he has been stabbed.” J.A. 32.

ec. The Supreme Court of Washington reversed and

reinstated the jury verdict. J.A. 2-19. The court ex-

plained that, “[blecause a codefendant’s confession is

presumed unreliable, the statement must either meet a

firmly rooted exception to the hearsay rule or provide

some indicia of reliability, such as interlocking with the

defendant’s own confession.” J.A. 15 (footnotes omit-

ted). The court concluded that petitioner and Sylvia’s

second statements “overlap[ped]” and were not “con-

tradictory,” J.A. 17, because both statements “indicate

that Lee was possibly grabbing for a weapon, but

* * * are equally unsure when this event may have

taken place,” J.A. 18. “Because [the] statements are

virtually identical,” the court reasoned, “admission of

Sylvia’s statement satisfies the requirement of reliabil-

ity under the confrontation clause.” J.A. 18-19 (em-

phasis omitted).

5

SUMMARY OF ARGUMENT

This Court’s current approach to determining the

admissibility of an out-of-court statement under the

Confrontation Clause presupposes that the Clause

restricts the admissibility of any out-of-court statement

offered as hearsay, that is, to prove the truth of the

matter asserted. See Ohio v. Roberts, 448 U.S. 56, 66

(1980). That framework should be reconsidered. The

Confrontation Clause should be confined to statements

that are testimonial in nature, such as former

testimony, affidavits, or confessions to law enforcement

officers.

That understanding accords with the constitutional

text, which grants the accused a right to confront the

“witnesses against” him. That language is most natu-

rally read as addressed to individuals who give formal

testimony or its functional equivalent. Restricting the

Confrontation Clause to testimonial hearsay also

accords with the historical roots of the confrontation

right, which was established to end the practice of ob-

taining criminal convictions through admission of ex

parte affidavits untested by cross-examination. Limit-

ing the reach of the Confrontation Clause to testimonial

hearsay would preserve its role in controlling the

admissibility of the types of statements at issue in the

vast majority of this Court’s decisions applying the

Clause.

Petitioner errs in contending that, if the Court

restricts the reach of the Confrontation Clause to

testimonial hearsay, the Clause should be construed to

impose a per se rule barring admission of such state-

ments. From its first decisions applying the Confronta-

tion Clause, the Court has refused to adopt a cate-

gorical ban on admissibility, and has recognized that the

6

right of confrontation must give way when necessry to

advance the reliability of the fact-finding process. In

circumstances in which testimonial hearsay carries

inherent guarantees of reliability and the declarant is

unavailable to testify at trial, preventing the fact-finder

from hearing the out-of-court statement would subvert

the truth-seeking purpose of the Confrontation Clause.

Moreover, because a finding of reliability presumes that

cross-examination would be of marginal utility, admis-

sion of the out-of-court statement does not infringe the

defendant’s protected interests. This Court has held

that other Sixth Amendment rights must yield on

occasion in service of the objective of promoting reli-

ability in the outcome of criminal trials. The Court

— construe the right of confrontation no differ-

ently.

ARGUMENT

THE CONFRONTATION CLAUSE DOES NOT

IMPOSE A CATEGORICAL PROHIBITION AGAINST

ADMISSION OF THE OUT-OF-COURT TESTIMONIAL

STATEMENTS OF AN UNAVAILABLE WITNESS

The Confrontation Clause guarantees a criminal de-

fendant the right “to be confronted with the witnesses

against him.” U.S. Const. Amend. VI. In Ohio v.

Roberts, 448 U.S. 56 (1980), this Court formulated a

“general approach” to Confrontation Clause review of

hearsay statements. Jd. at 65.7 Under that approach:

[WJhen a hearsay declarant is not present for cross-

examination at trial, the Confrontation Clause nor-

mally requires a showing that he is unavailable.

2 The Confrontation Clause imposes no restrictions against the

admission of out-of-court statements for non-hearsay purposes.

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

7

Even then, his statement is admissible only if it

bears adequate “indicia of reliability.” 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 guaran-~

tees of trustworthiness.

448 U.S. at 66; see, e.g., Lilly v. Virginia, 527 U.S. 116,

124-125 (1999) (plurality opinion); Idaho v. Wright, 497

U.S. 805, 814-815 (1990); Bourjaily v. United States, 483

U.S. 171, 182-183 (1987). In this case, the Supreme

Court of Washington, applying the Roberts framework,

assessed whether Sylvia’s second “statement contains a

sufficient indicia of reliability to satisfy the confronta-

tion clause.” J.A. 13.

Petitioner asserts that the Confrontation Clause

precludes any such inquiry into reliability, by erecting a

categorical bar against the admission of “testimonial”

hearsay such as depositions, prior testimony, or confes-

sions to law enforcement officers. That argument has

two elements. First, petitioner contends that the

Confrontation Clause pertains solely to out-of-court

statements that are testimonial in nature, because a

person who makes a non-testimonial statement is not

acting as a “witness against” the defendant within the

meaning of the Clause. Second, petitioner contends

that, as to testimonial statements, the Confrontation

Clause establishes an absolute rule of inadmissibility,

even if the statements are reliable and there is no other

way to obtain the witness’s testimony.

The government agrees that the term “witnesses

against” in the Confrontation Clause pertains solely to

live witnesses and to out-of-court declarants who pro-

vide the functional equivalent of testimony. The gov-

8

ernment made essentially the same submission as

amicus curiae in White v. Illinois, 502 U.S. 346 (1992),

which involved a Confrontation Clause challenge to

the admission of certain non-testimonial hearsay. Al-

though the Court rejected that submission (see id. at

352-353), the government renews it in this case in view

of the Court’s grant of certiorari on the question

whether the Roberts framework warrants reconsidera-

tion.

The government parts company with petitioner on

the second element of his argument. The suggestion

that the Confrontation Clause imposes a per se bar

against the admission of testimonial hearsay is incon-

sistent with numerous decisions of this Court confirm-

ing that the confrontation right is not absolute, with the

basic purpose of the Confrontation Clause to promote

reliability and accuracy in criminal trials, and with the

approach of this Court in other Sixth Amendment

contexts. Accordingly, the Washington Supreme Court

correctly declined to rule that Sylvia’s tape-recorded

confession was per se inadmissible.

A. The Confrontation Clause Governs The Admissibility

Of Out-Of-Court Statements Only When The State-

ments Are Testimonial In Nature

The assumption in Roberts that all hearsay is subject

to scrutiny under the Confrontation Clause appears

born of a view that the Confrontation Clause accommo-

dates only two polar interpretations—one that would

confine the term “witnesses against” to persons who ac-

tually testify at trial, and the other that would construe

those words to encompass any hearsay declarant whose

statement is offered at trial. See Dutton v. Evans, 400

U.S. 74, 93-100 (1970) (Harlan, J., concurring); Califor-

nia v. Green, 399 U.S. 149, 172-189 (1970) (Harlan, J.,

concurring). But the language, viewed in historical

9

context, supports an intermediate interpretation, under

which the Clause applies to those individuals who

provide in-court testimony or its functional equivalent

—i.e., affidavits, depositions, prior testimony, or formal

statements to law enforcement officers, including the -

accomplice confession at issue in this case.

1. A declarant acts as a “witness against” the

defendant within the meaning of the Confronta-

tion Clause when giving testimony or its

equivalent

By its terms, the Confrontation Clause pertains only

to statements made by “witnesses against” a defendant.

At the time the Sixth Amendment was adopted, as now,

a “witness” was understood to be “one who gives

testimony” or “testifies”’—that is, “[iJn judicial pro-

ceedings, [one who] make{s] a solemn declaration under

oath, for the purpose of establishing or making proof of

some fact to a court.” Maryland v. Craig, 497 U.S. 836,

864 (1990) (Scalia, J., dissenting) (quoting 2 N. Webster,

An American Dictionary of the English Language 113

(1828)).

The word “witness,” in the abstract, can also refer to

any person who observed an event. But that is not the

sense in which the term is used in the Sixth Amend-

ment. Persons who merely observe matters pertinent

to a criminal prosecution do not become “witnesses

against” the defendant unless and until they convey

their observations in the form of testimony or its

functional equivalent. See White, 502 U.S. at 360

(Thomas, J., concurring in part and concurring in the

judgment) (quoting Craig, 497 U.S. at 864-865 (Scalia,

J., dissenting)). Cf. United States v. Hubbell, 530 U.S.

27, 34 (2000) (“The word ‘witness’ in the constitutional

text [of the Fifth Amendment privilege against com-

10

pelled self-incrimination] limits the relevant category of

compelled incriminating communications to those that

are ‘testimonial’ in character.”).

Indeed, the law of evidence authorizes the admission

of certain non-testimonial declarations, such as excited

utterances, dying declarations, and co-conspirator

statements, precisely because they are given under cir-

cumstances fundamentally different from those sur-

rounding testimony by a “witness.” Such statements

are unlikely to be influenced by the declarant’s cal-

culation of their implications for a future trial. See

Wright, 497 U.S. at 820. As a result, they are not made

in the declarant’s capacity as a “witness” for purposes

of the Sixth Amendment.

2. The historical basis of the right of confrontation

supports limiting the Confrontation Clause to

testimonial hearsay

a. Interpreting the Confrontation Clause to apply

solely to testimonial hearsay is consistent with the

Clause’s historical roots. Although the concept of

confrontation dates to Roman times (see. Coy v. Iowa,

487 U.S. 1012, 1015-1016 (1988)), the common-law right

to confrontation first emerged only in the 16th century.

Juries rarely heard witnesses before that time, instead

obtaining information “by consulting informed persons

not called into court.” 5 J. Wigmore, Evidence § 1364,

at 13 (Chadbourne rev. ed. 1974); see D. Pollitt, The

Right of Confrontation: Its History and Modern Dress,

8 J. Pub. L. 381, 386-387 (1959). By the end of the 16th

century, it had become common for the Crown to offer

evidence in criminal proceedings, 9 W. Holdsworth,

History of the English Law 224 (1926), but still not

through presentation of live testimony.

1]

A trial was preceded by an investigation conducted

by examining magistrates, who interrogated the pri-

soner, any accomplices, and other persons with relevant

information. See 1 J. Stephen, A History of the Crimi-

nal Law of England 221, 325 (1883). The prisoner had

no right to be present during those pre-trial examina-

tions. Jd. at 221. The ensuing trial consisted principally

of the presentation of argument between the prisoner

and the prosecutor. 9 W. Holdsworth, supra, at 225;

see 1 J. Stephen, supra, at 325-326. There was no re-

quirement for the prosecution to rely on live testimony.

To the contrary, in courts of common law, “(t]he proof

was usually given by reading depositions, confessions of

accomplices, letters, and the like; and this occasioned

frequent demands by the prisoner to have his ‘accus-

ers,’ i.e., the witnesses against him, brought before him

face to face.” 1 J. Stephen, supra, at 326; see 9 W.

Holdsworth, supra, at 228. In the Star Chamber, simi-

larly, “[tJhe evidence of witnesses was given upon

affidavit.” 1J. Stephen, supra, at 338.’

b. The right of confrontation emerged to put an end

to such practices. Although it is uncertain precisely

when the right was formally recognized, the practice of

requiring the introduction of testimony through live

witnesses rather than depositions and affidavits was

well established by the mid-1600s. See D. Pollitt,

supra, 8 J. Pub. L. at 389-390; 5 J. Wigmore, supra,

3 The trial of Sir Walter Raleigh for treason in 1603 presents a

notorious example. The crucial evidence against Raleigh included

the deposition of one Cobham as well as a letter later written by

Cobham, both of which implicated Raleigh in a plot to seize the

throne. Raleigh had obtained a written retraction from Cobham

and believed that Cobham would testify in his favor at trial. The

court nevertheless rejected Raleigh’s demand that Cobham be

called as a witness. See D. Pollitt, supra, 8 J. Pub. L. at 388-389.

12

§ 1364, at 23 n.47. In this country, a number of state

constitutions adopted after the Declaration of Inde-

pendence recognized a right of confrontation.‘ The

Sixth Amendment’s Confrontation Clause appears pat-

terned after those provisions.

The history of the Confrontation Clause thus sup-

ports Justice Story’s observation that the Clause sim-

ply codified the common-law right that had been recog-

nized in England, and “follow[{ed] out the established

course of the common law in all trials for crimes.” J.

Story, Commentaries on the Constitution of the United

States 664 (1833). This Court has drawn the same

conclusion:

The right of confrontation did not originate with the

provision of the Sixth Amendment, but was a

common-law right having recognized exceptions.

The purpose of that provision, this Court has often

said, is to continue and preserve that right, and not

to broaden it or disturb the ex-eptions.

Salinger v. United States, 272 U.S. 542, 548 (1926);

accord, Mattox v. United States, 156 U.S. 237, 243

(1895).

3. The assumption in Roberts that the Confrontation

Clause is coextensive with the hearsay rules is

unsupported by the evolution of hearsay law and

the confrontation right

a. The right of confrontation is a feature of criminal

procedure intended to benefit criminal defendants. The

hearsay rule, by contrast, is a feature of evidence law

applicable to all litigants in both civil and criminal

4 See 1 B. Schwartz, The Bill of Rights: A Documentary His-

tory 235, 265, 278, 282, 287, 323, 342, 377 (1971) (Va., Pa., Del., Md.,

N.C., Vt., Mass., N.H.); D. Pollitt, supra, 8 J. Pub. L. at 397-399.

13

proceedings. The “appreciation of the impropriety of

using hearsay statements” took increasing hold in

England during the 17th century; and by the early 18th

century, the general prohibition against admitting hear-

say declarations “receive[d] a fairly constant enforce-

ment.” 5 J. Wigmore, supra, § 1364, ut 18. From the

outset, however, the hearsay rule was subject to well-

recognized (and enduring) exceptions.’ There is “little

if any indication in the historical record that the excep-

tions to the hearsay rule were understood to be limited

by the simultaneously evolving common-law right of

confrontation.” White, 502 U.S. at 362 (Thomas, J.,

concurring in part and concurring in the judgment).

b. The decisions of this Court and other courts

before Roberts did not support the notion that the Con-

frontation Clause regulates the admissibility of all hear-

say declarations. The development of the hearsay rule

in state and federal decisions has been marked by the

recognition of exceptions authorizing the admission of

out-of-court statements regardless of the declarant’s

availability. Before the Confrontation Clause applied to

the States as incorporated through the Fourteenth

Amendment, see Pointer v. Texas, 380 U.S. 400, 403-

5 At least the following exceptions had taken shape by the late

18th century: dying declarations, regularly kept records, co-con-

spirator declarations, evidence of pedigree and family history, and

various kinds of reputation evidence. See Patton v. Freeman, 1

N.J.L. 113, 115 (NJ. 1791) (co-conspirator declarations); 5 J. Wig-

more, supra, § 1430, at 275 (dying declarations); id. § 1518, at 426-

428 (regularly kept records); id. § 1476, at 350 (declarations against

interest by deceased persons); id. § 1476, at 352-358 (statements of

fact against penal interest); id. § 1480, at 363 (pedigree and family

history); id. § 1580, at 544 (reputation evidence); 3 J. Wigmore,

supra, § 735, at 78-84 (past recollection recorded). See also 3 W.

Blackstone, Commentaries on the Law of England 368 (1768).

14

406 (1965), the constitution of virtually every State

contained a provision substantially equivalent to the

Clause. 5 J. Wigmore, supra, § 1397, at 155-158 n.1.

Many state decisions had rejected claims that the ad-

mission of out-of-court statements under exceptions to

the hearsay rule violated those state constitutional pro-

visions. See id. § 1397, at 159-162.

Until Roberts, this Court’s cases likewise provided no

basis for such a contention. All but two of the Court’s

decisions applying the Confrontation Clause to hearsay

declarations involved prior testimony or confessions—

statements functionally equivalent to those that fueled

recognition of the common-law right to confrontation.*

The remaining two decisions held that the admission of

statements by co-conspirators in furtherance of the

conspiracy did not violate the Confrontation Clause.’

6 See Reynolds v. United States, 98 U.S. 145, 158-161 (1878)

(testimony at a prior trial); Mattox, 156 U.S. at 240-244 (same);

Motes v. United States, 178 U.S. 458, 471-474 (1900) (testimony at

“preliminary trial”); Pointer v. Texas, 380 U.S. at 406-408 (prelimi-

nary hearing testimony); Douglas v. Alabama, 380 U.S. 415, 418-

420 (1965) (co-defendant’s confession to police); Brookhart v. Janis,

384 U.S. 1, 4 (1966) (same); Barber v. Page, 390 U.S. 719, 722-725

(1968) (preliminary hearing testimony); Berger v. California, 393

U.S. 314 (1969) (same); Bruton v. United States, 391 U.S. 123, 126-

128 & n.3 (1968) (codefendant’s confession); Roberts v. Russell, 392

U.S. 293 (1968) (same); Green, supra (preliminary hearing testi-

mony and statement to police officer); Mancusi v. Stubbs, 408 U.S.

204, 213-21¢€ ‘1972) (prior testimony). See also Robertson v.

Baldwin, 165 U.S. 275, 282 (1897); Kirby v. United States, 174 U.S.

47, 54-61 (1899); Dowdell v. United States, 221 U.S. 325, 329-330

(1911); Diaz v. United States, 223 U.S. 442, 449-452 (1912); Snyder

v. Massachusetts, 291 U.S. 97, 107 (1934); Bridges v. Wixon, 326

U.S. 135, 153-154 (1945).

7 Dutton, 400 U.S. at 74; Delaney v. United States, 263 U:S.

586, 590 (1924).

a RE a te Oy

15

Accordingly, nothing in this Court’s cases suggested

that the Confrontation Clause was applicable to all out-

of-court statements.

The view that the Confrontation Clause limits the

admissibility of all hearsay gained currency in this

Court with the “general approach” adopted in Roberts,

448 U.S. at 65. The hearsay at issue there, however, as

in many of the Court’s previous Confrontation Clause

cases, was the preliminary hearing testimony of a

witness who could not be found at the time of trial. The

Court upheld admission of the testimony because it had

been “tested with the equivalent of significant cross-

examination” and the witness was unavailable to give

testimony at trial. Jd. at 70, 77. The facts of Roberts

therefore did not require formulation of a test

governing the admissibility of out-of court statements

other than the kind to which the Confrontation Clause

had long been applied. See, e.g., Mattox, 156 U.S. at

242 244. The Court observed that “(t]he historical

evidence leaves little doubt * * * that the Clause was

intended to exclude some hearsay,” 448 U.S. at 63

(emphasis added), but articulated an approach that

reached all hearsay, id. at 65-66.

ce. The Roberts framework has been regularly in-

voked in subsequent cases raising Confrontation Clause

challenges, but for the most part, as in Roberts, without

considering whether its reach squares with the term

“witnesses against” in the text of the Clause. See Lilly,

527 U.S. at 124-125 (plurality opinion); Wright, 497 U.S.

at 814-815; Bourjaily, 483 U.S. at 181-184; Lee v.

Illinois, 476 U.S. 530, 543 (1986); United States v.

Inadi, 475 U.S. 387, 392-394 (1986).* The sole exception

8 Lilly and Lee involved accomplice statements to the police,

and Bourjaily and Inadi involved co-conspirator statements. The

16

is White v. Illinois, supra, in which the Court rejected

the argument of the United States as amicus curiae

that the words “witnesses against” limit the

Confrontation Clause to testimonial hearsay. 562 U.S.

at 352-353. The Court reasoned that construing the

Clause in that manner would “virtually eliminate its

role in restricting the admission of hearsay testimony.”

Id. at 352; see Lilly, 527 U.S. at 124 (plurality opinion).

Excluding non-testimonial hearsay from the reach of

the Confrontation Clause, however, would leave wholly

intact the role of the Clause in controlling the admission

of former testimony and testimonial statements to

police by accomplices and witnesses—precisely the type

of hearsay at issue in the vast majority of the Court’s

Confrontation Clause decisions addressing the admis-

sibility of out-of-court statements. See notes 6-8,

supra. The suggested approach thus would not affect

the holding in several of those cases that the admission

of testimonial hearsay violated the Clause.’ By

only case after Roberts in which the Court arguably applied the

framework to exclude non-testimonial hearsay is Wright. There,

however, the Court did not address whether the child declarant

was acting as a witness when she made the excluded statements to

a pediatrician. Moreover, the questioning occurred after the de-

clarant had been taken into custody by police, and the state court’s

characterization of the questioning suggests that it was designed

to develop evidence for a criminal case. See 497 U.S. at 813.

® See Motes, 178 U.S. at 471-474; Pointer, 380 U.S. at 406-408;

Douglas, 380 U.S. at 418-420; Brookhart, 384 U.S. at 4; Barber, 390

U.S. at 722-725; Bruton, 391 U.S. at 126-128; Roberts v. Russell,

supra; Lee, 476 U.S. at 544-546; Lilly, 527 U.S. at 189. Likewise,

the federal courts of appeals have held that the admission of par-

ticular testimonial hearsay violated the defendant’s confrontation

rights. See, eg., Cook v. McKune, 323 F.3d 825 (10th Cir. 2003);

Padilla v. Terhune, 309 F.3d 614, 617-618 (9th Cir. 2002); Ryan v.

Miller, 303 F.3d 231 (2d Cir. 2002); Calvert v. Wilson, 288 F.3d 823

17

contrast, with the arguable exception of Wright (see

note 8, supra), the Court has yet to find any violation of

the Clause in the admission of non-testimonial hearsay.

For those reasons, the Court should reconsider its re-

jection in White of an approach confining Confrontation

Clause review to hearsay that constitutes testimony or

its functional equivalent.

B. The Confrontation Clause Does Not Bar The Ad-

mission Of Testimonial Hearsay When The Witness Is

Unavailable To Testify And The Statement Is Inher-

ently Reliable

Petitioner acknowledges that, if this Court continues

to apply the Confrontation Clause to all hearsay state-

ments, the Clause cannot plausibly be read to establish

an absolute rule of inadmissibility. See Pet. Br. 42-50.

Any such approach “would abrogate virtually every

hearsay exception.” Roberts, 448 U.S. at 63. The

Confrontation Clause could no more be read to impose a

per se rule of inadmissibility if the Court were (cor-

rectly) to confine the Clause to testimonial hearsay.

The language on which that interpretation rests—

“witnesses against”—speaks solely to the type of

statements encompassed by the Clause, not to whether

the Clause categorically bars the admission of those

statements.

Petitioner relies on language providing that the ac-

cused “shall enjoy the right” to confront adverse wit-

nesses, U.S. Const. Amend. VI, and contends (Pet. Br.

34-35) that the right is “unconditional” because the

terms admit of “no qualifications or exceptions.” That

argument lacks merit. This Court has consistently held

(6th Cir. 2002); United States v. Westmoreland, 240 F.3d 618, 627

(7th Cir. 2001); McCandless v. Vaughn, 172 F.3d 255, 264-270 (3d

Cir. 1999).

18

that the right of confrontation, like other rights estab-

lished by the Sixth Amendment, must give way when

necessary to vindicate the overriding interest in

promoting reliability and accuracy in criminal trials.

1. The Court has rejected a categorical rule when

construing the right of confrontation and other

rights protected by the Sixth Amendment

a. This Court has made clear, both before and after

Roberts, that “the right to confront and to cross-

examine is not absolute and may, in appropriate cases,

bow to accommodate other legitimate interests in the

criminal trial process.” Chambers v. Mississippi, 410

U.S. 284, 295 (1973). Consequently, rather than adopt-

ing a categorical rule of inadmissibility, the Court has

“attempted to harmonize the goal of the Clause—

placing limits on the kind of evidence that may be

received against a defendant—with a societal interest

in accurate factfinding, which may require considera-

tion of out-of-court statements.” Bourjaily, 483 U.S. at

182.

Indeed, the Court explained in one of its earliest

decisions applying the Confrontation Clause that, while

there “is doubtless reason for saying that the accused

should never lose the benefit of any of these safe-

guards,” “general rules of law of this kind, however be-

neficent in their operation and valuable to the accused,

must occasionally give way to considerations of public

policy and the necessities of the case.” Mattox, 156 U.S.

at 243. The Court has not wavered from that under-

standing. See, eg., Craig, 497 U.S. at 847 (“T]he

[Confrontation] Clause permits, where necessary, the

admission of certain hearsay statements against a

defendant despite the defendant’s inability to confront

the declarant at trial.”); Snyder v. Massachusetts, 291

19

U.S. 97, 107 (1934) (“(T]he privilege of confrontation

[has not] at any time been without exceptions,” and

those exceptions “are not even static, but may be

enlarged from time to time.”). Simply put, the “rights

conferred by the Confrontation Clause are not absolute,

and may give way to other important interests.” Coy,

487 U.S. at 1020."

Maryland v. Craig, supra, confirms the Court’s con-

tinued rejection of a categorical approach. That case

involved the “core” right guaranteed by the Confronta-

tion Clause, that of “face-to-face confrontation” of an

adverse witness. 497 U.S. at 847 (quoting Green, 399

U.S. at 157). The question was whether a State could

permit the testimony of an alleged child abuse victim by

one-way closed circuit television when found necessary

to protect the child from the trauma of a face-to-face

encounter with the defendant. The Court reiterated

that the confrontation right is “not absolute,” and held

that the defendant may be denied face-to-face confron-

tation where “necessary to further an important public

policy” and “where the reliability of the testimony is

otherwise assured.” Jd. at 850. The Court thus con-

cluded that the State’s interest in protecting child

abuse victims from emotional trauma “may be suffi-

ciently important” in certain cases “to outweigh * * *

a defendant’s right to face his or her accusers in court.”

Id. at 853; see id. at 857.

10 Petitioner’s argument for a categorical approach to the right

of confrontation is also inconsistent with the recognition that trial

judges “retain wide latitude insofar as the Confrontation Clause is

concerned to impose reasonable limits on * * * cross-examination

based on concerns about, among other things, harassment, preju-

dice, confusion of the issues, the witness’ safety, or interrogation

that is repetitive or only marginally relevant.” Delaware v. Van

Arsdall, 475 U.S. 673, 679 (1986).

20

b. Petitioner’s call for a categorical rule of inadmis-

sibility under the Confrontation Clause is incompatible

with the Court’s approach when construing other pro-

cedural rights secured by the Sixth Amendment. See

Craig, 497 U.S. at 850 (reconciling interpretation of

Confrontation Clause with decisions construing “other

Sixth Amendment rights”). For instance, the Court’s

application of the Sixth Amendment right to counsel is

grounded in the understanding that the “right has been

accorded * * * ‘not for its own sake,” Mickens v.

Taylor, 535 U.S. 162, 166 (2002) (quoting United States

v. Cronic, 466 U.S. 648, 658 (1984)), but for its implica-

tions for the reliability of criminal trials. Accordingly,

the right is not absolute in all contexts. In Perry v.

Leeke, 488 U.S. 272 (1989), the Court found no constitu-

tional violation when the defendant was denied access

to his counsel during a recess between his direct testi-

mony and cross-examination. The Court explained that

“cross-examination of a witness who is uncounseled be-

tween direct examination and cross-examination is

more likely to lead to the discovery of truth than is

cross-examination of a witness who is given time to

pause and consult with his attorney.” Jd. at 282.

Of particular significance, the Court has declined to

adopt a categorical approach when interpreting the

right to obtain the testimony of a favorable witness

under the Compulsory Process Clause—the comple-

ment to the right to cross-examine an adverse witness

under the Confrontation Clause. In Taylor v. Illinois,

484 U.S. 400 (1988), the Court rejected a Compulsory

Process Clause challenge to the exclusion of a witness’s

testimony as a sanction for failing to identify the wit-

ness in a pretrial discovery request. The Court ex-

plained that “the mere invocation of [the compulsory

process] right cannot automatically and invariably

21

outweigh countervailing public interests.” Jd. at 414.

The Court emphasized that those interests include the

“integrity of the adversary process, which depends both

on the presentation of reliable evidence and the

rejection of unreliabie evidence,” and “the potential

prejudice to the truth-determining function of the trial

process.” Jd. at 414-415. The requirement to identify

witnesses in pretrial discovery, the Court reasoned,

serves to “minimize the risk that fabricated testimony

will be believed,” id. at 413, and protects against under-

mining “the effectiveness of cross-examination and the

ability to adduce rebuttal evidence,” id. at 415. See also

Michigan v. Lucas, 500 U.S. 145 (1991) (rejecting chal-

lenge under Compulsory Process Clause to refusal of

trial court to permit rape defendant to testify about his

past sexual relationship with the victim as sanction for

failing to comply with a state statute requiring pre-trial

notice of such testimony).

2. A categorical rule of inadmissibility would con-

Sflict with the objective of the Confrontation

Clause to promote the truth-seeking function of

criminal trials

a. The Court has “interpreted the Confrontation

Clause in a manner sensitive to its purposes and sen-

sitive to the necessities of trial and the adversary

process.” Craig, 497 U.S. at 849. And the Court has

made clear that the right of cross-examination is “more

than a desirable rule of trial procedure.” Chambers,

410 U.S. at 295. Rather, the “mission” of the Con-

frontation Clause is “to advance ‘the accuracy of the

truth-determining process in criminal trials.’” Tennes-

see v. Street, 471 U.S. 409, 415 (1985) (quoting Dutton,

400 U.S. at 89); see Craig, 497 U.S. at 846; Inadi, 475

22

U.S. at 396. The “right to cross-examination, protected

by the Confrontation Clause, thus is essentially a

‘functional’ right designed to promote reliability in the

truth-finding functions of a criminal trial.” Kentucky v.

Stincer, 482 U.S. 730, 737 (1987); see Lee, 476 U.S. at

540. Cross-examination advances the truth-seeking

function by subjecting the evidence against a defendant

“to rigorous testing in the context of an adversary

proceeding,” thus helping to “ensure [its] reliability.”

Craig, 497 U.S. at 845; see Lilly, 527 U.S. at 123-124

(plurality opinion).

Accordingly, both the Confrontation Clause and

evidentiary rules allowing for the admission of reliable

hearsay serve the same underlying purpose: promoting

the accuracy and reliability of the fact-finding process

at trial. When the hearsay declarant is unavailable,

cross-examination is not an option; instead, the choice is

between admitting the hearsay upon a sufficient

showing of its reliability or excluding the statement

altogether regardless of its probative value. In that

situation, admitting reliable hearsay advances the pur-

poses of the Confrontation Clause. Cf. Jnadi, 475 U.S.

at 396 (stating that the admission of the statements of

co-conspirators, regardless of the opportunity for cross-

examination, “actually furthers the Confrontation

Clause’s very mission, which is to advance the accuracy

of the truth-determining process”) (internal quotation

marks omitted). Because confrontation rights occasion-

ally must give way even in the service of interests that

may compromise the Clause’s truth-seeking function,

see Craig, 497 U.S. at 846-850, 856-857, it follows that

those rights also must occasionally give way where the

admission of evidence promotes the reliability of the

trial.

ere rem er

23

b. Conversely, the categorical approach urged by

petitioner, by excluding from trial even the most reli-

able and probative testimonial hearsay, would unduly

encroach on the truth-seeking function and the associ-

ated interest in convicting those guilty of crime. See

Mattox, 156 U.S. at 243-244 (explaining that an absolute

rule of exclusion would produce “a manifest failure of

justice” in the case by allowing a guilty defendant to go

“scot free” despite the reliability of the hearsay testi-

mony at issue). Moreover, when the out-of-court state-

ment is found to be inherently reliable, admission of the

evidence, even without an opportunity for cross-exami-

nation, does not infringe the values that the Confronta-

tion Clause is designed to further.”

Under this Court’s decisions, a finding of inherent

reliability requires that “the declarant’s truthfulness is

so clear from the surrounding circumstances that the

test of cross-examination would be of marginal utility”

—that is, that cross-examination could not plausibly

undermine the reliability of the statement. Wright, 497

U.S. at 820. As Wigmore explained:

The theory of the hearsay rule * * * is that the

many possible sources of inaccuracy and untrust-

worthiness which may lie underneath the bare

untested assertion of a witness can best be brought

In Wright, the Court held that, “[t]o be admissible under the

Confrontation Clause, hearsay evidence used to convict a defen-

dant must possess indicia of reliability by virtue of its inherent

trustworthiness, not by reference to other evidence at trial.” 497

U.S. at 822 (emphasis added). The Court accordingly rejected the

co clusion that corroborating evidence could be used “to support a

hearsay statement’s ‘particularized guarantees of trustworthi-

ness,’” id. at 823, and instead, directed attention to “the totality of

the circumstances that surround the making of the statement and

that render the declarant particularly worthy of belief,” id. at 820.

24

to light and exposed, if they exist, by the test of

cross-examination. But this test or security may in

a given instance be superfluous; it may be suffi-

ciently clear, in that instance, that the statement

offered is free enough from the risk of inaccuracy

and untrustworthiness, so that the test of cross-

examination would be a work of supererogation.

5 J. Wigmore, supra, § 1420, at 251 (quoted in Wright,

497 U.S. at 819); see Dutton, 400 U.S. at 89 (plurality

opinion) (“[T]Jhe possibility that cross-examination of

Williams could conceivably have shown the jury that

the statement, though made, might have been unreli-

able was wholly unreal.”). Where cross-examination

would be “a work of supererogation,” refusing admis-

sion of the hearsay statement in the name of the

Confrontation Clause would subvert the “Clause’s very

mission—to advance the accuracy of the truth-deter-

mining process in criminal trials.” Street, 471 U.S. at

415 (internal quotation marks omitted); cf. White, 502

U.S. at 356-357 (“To exclude such probative statements

under the strictures of the Confrontation Clause would

be the height of wrongheadedness, given that the

Confrontation Clause has as a basic purpose the pro-

motion of the integrity of the factfinding process.”)

(internal quotation marks omitted).

c. Testimonial hearsay, like all other hearsay, can be

sufficiently reliable in certain situations to warrant its

admission into evidence. This Court has frequently

upheld the admission of testimonial hearsay that comes

in the form of statements in a preliminary hearing or

previous trial. See, e.g., Roberts, 448 U.S. at 70-73;

Mancusi v. Stubbs, 408 U.S. 204, 213- 216 (1972); Green

399 U.S. at 165-166; Mattox, 156 U.S. at 242-244. The

Court has explaiu.ed that result not on the basis that

Dee aie

OTC

OTN

25

the confrontation requirement was substantially satis-

fied by the earlier opportunity to conduct cross-exami-

nation, but instead on the basis of the resulting reliabil-

ity of the statement: “Since there was an adequate

opportunity to cross-examine [the witness], and counsel

* * availed himself of that opportunity, the

transcript * * * bore sufficient ‘indicia of reliability’

and afforded ‘the trier of fact a satisfactory basis for

evaluating the truth of the prior statement.’” Mancusi,

408 U.S. at 216 (quoting Dutton, 400 U.S. at 89); see

Roberts, 448 U.S. at 73.

Other decisions of the Court leave no doubt that

testimonial hearsay can carry sufficient indicia of reli-

ability to justify admission even absent a previous op-

portunity to cross-examine the declarant. In Lee v.

Illinois, supra, for example, although the Court found

that the presumption of unreliability that attaches to

accomplice confessions incriminating the accused had

not been rebutted in the circumstances, 476 U.S. at 544,

the Court specifically “agree({d] that the presumption

may be rebutted” in certain situations, id. at 543. In

Lilly v. Virginia, supra, similarly, the plurality found

that the accomplice confession at issue failed to mani-

fest sufficient indicia of reliability, 527 U.S. at 137-139,

but confirmed that such confessions are admissible if

“the declarant’s truthfulness is so clear from the sur-

rounding circumstances that the test of cross-examine-

tion would be of marginal utility,” id. at 136 (quoting

Wright, 497 U.S. at 820); see id. at 134-135 n.5. Four

other Justices agreed that the Confrontation Clause

imposes no “blanket ban on the government’s use of

accomplice statements that incriminate a defendant.”

Id. at 143 (Thomas, J., concurring in part and con-

curring in the judgment); id. at 147-148 (Rehnquist,

26

C.J., concurring in the judgment, joined by O’Connor

and Kennedy, JJ.).

In recognizing that even accomplice confessions that

inculpate the defendant—a “presumptively suspect”

form of hearsay, Lee, 476 U.S. at 541—can be found

sufficiently reliable to warrant admissibility, the Court

necessarily established that there is no cause for

applying a per se rule of inadmissibility against testi-

monial hearsay. Indeed, in other contexts, testimonial

hearsay frequently will be far more reliable. For

instance, there may often be little reason to question

the validity of statements made to officers at the scene

by a disinterested bystander who directly observed the

commission of a crime and promptly reported it to the

police. Even as to accomplice confessions, an accom-

plice might divulge his own role in a crime without in

any way suggesting the involvement of the accused, but

in the course of doing so reveal details about the time

and place of the offense that, when combined with other

evidence, connect the accused to the scene of the crime.

If the accomplice is unavailable to testify at trial, his

confession, as entirely against his own self-interest,

may be sufficiently reliable to warrant admission to es-

tablish the time and place of the offense. The per se

exclusion of reliable testimonial hearsay in such circum-

stances, particularly if critical to the government’s case,

would jeopardize the accuracy and integrity of the fact-

finding process.”

2 The admission of a particularly reliable hearsay statement

does not deprive the defendant of all opportunity to challenge the

statement. For example, under Federal Rule of Evidence 806, if

hearsay is admitted, the credibility of the hearsay declarant “may

be attacked * * * by any evidence which would be admissible for

those purposes if (the] declarant had testified as a witness.” That

rule permits the defendant to attempt to cast doubt on the

27

d. None of this is to suggest, of course, that testi-

monial hearsay may be admitted even where the

declarant is available to testify but is not produced for

trial. The rule allowing for admission of reliable testi-

monial hearsay when the declarant is unavailable is one

of “necessity.” Roberts, 448 U.S. at 65. The unavailabil-

ity of the declarant occasions the need to admit the out-

of-court statement to prevent distortion of the truth-

seeking process by the exclusion of reliable and proba-

tive evidence. See United States v. Scheffer, 523 U.S.

303, 309 (1998) (“State and Federal Governments un-

questionably have a legitimate interest in ensuring that

reliable evidence is presented to the trier of fact in a

criminal trial.”). If the declarant is available to testify,

however, there is no need to admit the out-of-court

statement in lieu of live testimony subject to cross-

examination.

declarant’s credibility, motive, memory, or opportunity to observe

the events to which the statement relates.

28

CONCLUSION

The Court should hold that the Confrontation Clause

does not categorically bar the admission of testimonial

hearsay.

Respectfully submitted.

THEODORE B. OLSON

Solicitor General

CHRISTOPHER A. WRAY

Acting Assistant Attorney

General

MICHAEL R. DREEBEN

Deputy Solicitor General

SRI SRINIVASAN

Assistant to the Solicitor

General

JOEL M. GERSHOWITZ

Attorney

SEPTEMBER 2003