Amicus Curiae Brief — Davis v. Washington

(i) (Co) FIED

Nos. 05-5224 and 05-5705 FEB 2 - 2006

OFFICE OF THE CLERK

Jn the SUPREME COURT, U.S.

Supreme Court of the Anited States

ADRIAN MARTELL DAVIS,

- Petitioner,

STATE OF WASHINGTON,

Respondent.

HERSHEL HAMMON,

. Petitioner,

STATE OF INDIANA,

Respondent.

On Writs of Certiorari to the Supreme Court

of Washington and the Indiana Supreme Court

BRIEF OF AMICUS CURIAE COOK COUNTY,

ILLINOIS IN SUPPORT OF THE RESPONDENTS

RICHARD A. DEVINE

County of Cook, Illinois

State's Attorney

Counsel of Record

JAMES E. FITZGERALD

ANNETTE N. COLLINS

VERONICA CALDERON MALAVIA

SUSAN R. SCHIERL SULLIVAN

309 Richard J. Daley Center

Chicago, Illinois 60602

(312) 603-5496

Counsel for Amicus Curiae

Midwest Law Printing Company/Photex — Chicago — (312) 431-0185

i

QUESTIONS PRESENTED

Whether an alleged victim’s statements to a 911 operator

naming her assailant—admitted as “excited utterances”

under a jurisdiction’s hearsay law—constitute “testimo-

nial” statements subject to the Confrontation Clause

restrictions enunciated in Crawford v. Washington, 541

U.S. 36 (2004).

Whether an oral accusation made to an investigating

officer at the scene of an alleged crime is a testimonial

statement within the meaning of Crawford v. Washington,

541 U.S. 36 (2004).

ss

TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES .....................- iii

oo 1

STATEMENT OF THE CASE ..................... 1

SUMMARY OF ARGUMENT ...................... 2

ET Rk isa Cie a inchs an bee Raeoe ees oO es 5

THE CONFRONTATION CLAUSE WAS DE-

SIGNED TO GUARD AGAINST

GOVERNMENTAL OPPRESSION; THEREFORE,

ANY DEFINITION OF THE TERM “TESTIMO-

NIAL” MUST INCLUDE THE GOVERNMENT

PRODUCTION OF EX PARTE OUT-OF-COURT

DEE hbase vc asVabas seeds saan teen see kees 5

If.

THE “TEMPORAL REACH” BACKWARDS

OF THE CONFRONTATION CLAUSE WITHIN

THE PRE-TRIAL PROCESS SHOULD BE SYN-

THESIZED WITH THIS COURT'S ALREADY-

DEVELOPED SIXTH AMENDMENT JURISPRU-

EE 6 8556680450 6 chee NED ARCs beaweges tks 22

TABLE OF AUTHORITIES

Cases

Benton v. Maryland,

PEE Set evevcnsuaunsans

Bourjaily v. United States,

ST ED Raddowcen¥hbedeéeey

California v. Green,

SE PA SPEED. oc ccc nocerecesecses

Coy v. lowa,

Gr SP EEE nccecesonseviseces

Crawford v. Washington,

ee ED hos cSt onc bis Pes news

Doe v. United States,

ee ey ED onc bh 6 00004 08440000

Duncan v. Louisiana,

ey PE oo Ske vd b4en Poe 60'0

Dutton v. Evans,

400 U.S. 74 (1970) ............-. eae

Faretta v. California,

ee ED o'n.0.w ib ces cetvessas

Gerstein v. Pugh,

SS SED 6 5503-00-58 be peeeses

Hurtado v. California,

Se OR ED od nek bas od 6 be 8 6%

PAGE(S)

iv

Idaho v. Wright,

497 U.S. 806 (1980) .............

In re Oliver,

333 U.S. 267 (1948) .............

Kentucky v. Stincer,

482 U.S. 730 (1987) .............

Kirby v. Illinois,

406 U.S. 682 (1972) .............

Klopfer v. North Carolina,

386 U.S. 213 (1967) .............

Lee v. Illinois,

476 U.S. 530 (1986) .............

Lilly v. Virginia,

Ge Ute SEEMED ovcs wos vavens

Maine v. Moul’ .

474 US. USS \IGEB) .. we ccc ees

Malloy v. Hogan,

ok | re

Maryland v. Craig,

497 US. 886 (1980) .............

Michigan v. Jackson,

475 U.S. 625 (1986) ............:

Moran v. Burbine,

STG UB. STB ov vcs dvesnnes

Ohio v. Roberts,

ee a ek vee cknes 2, 6,7

Reid v. Covert,

SE 19, 21

Ring v. Arizona,

ER 16

Singer v. United States,

ee i ee eek eee ss 16

State v. Barnes,

ve ceeneseeees 23

Taylor v. Illinois,

eee 17

United States v. Ash,

ET 25-26

United States v. Gouveia, -

i ee Da a ig ieee ea ¢ 26, 29

United States v. Marion,

EE a 28, 29

United States ex rel. Toth v. Quarles,

tl eeues 19

United States v. Reid,

ee ee 14

United States v. Wade,

Ne ne ees 24

Washington v. Texas,

in nd cc ven ceivdewanuton wi 16

White v. Illinois,

ID ee ale Ces ee Se a ee 7

Constitutional Provisions

GE Co idan nn ddas navies skeshecsatesannce 16

ee OS ns bac aad abc cebeaweeeueee 5, 15

Other Authorities

Akhil Reed Amar, The Bill of Rights as a Constitution,

100 Yale L.J. 1131 (1991) ...............-.008- 17

Akhil Reed Amar, Confrontation First Principles:

A Reply to Professor Friedman,

te da bed ore ee en 14

Margaret A. Berger, The Deconstitutionalization

of the Confrontation Clause: A Proposal

for a Prosecutorial Restraint Model,

76 Minn. L. Rev. 557 (1992) ................ 17, 18

Edward J. Imwinkelried, The Constitutionalization of

Hearsay: °

The Extent to Which the Fifth and Sixth

Amendments Permit or Require the

Liberalization of Hearsay Rules, 76 Minn. L.

vil

Randolph N. Jonakait, Notes for a Consistent

and Meaningful Sixth Amendment,

82 J. Crim. L. & Criminology 713 (1992) ......... 17

Roger W. Kirst, The Procedural Dimension of

Confrontation Doctrine,

66 Neb. L. Rev. 485 (1967) ................. 14, 15

]

INTEREST OF AMICUS

Amicus is the County of Cook, Illinois, within which the

Criminal Division of the Cook County Circuit Court consti-

tutes one of the most active criminal court systems in the

country. The Cook County State’s Attorney is the chief legal

officer of Cook County and is constitutionally and statutorily

charged with the duty to prosecute all criminal actions in

the circuit court for his county. The outcome of the litiga-

tion in the two cases before this Court will have a direct

impact on the prosecutions in Cook County and will

significantly affect the execution of the Cook County State’s

Attorney’s duties. As the legal representative of a unit of

state government, Supreme Court Rule 37 allows Amicus to

file a supporting brief without permission of the parties.

Therefore, Cook County, Illinois respectfully submits this

brief as Amicus Curiae in support of Respondents.

STATEMENT OF THE CASE

Amicus adopts the Statements of the Cases presented by

Respondent State of Washington in Davis, No. 05-5224 and

Respondent State of Indiana in Hammon, No. 05-5705 in

their respective merits briefs.

2

SUMMARY OF ARGUMENT

In Crawford v. Washington, 541 U.S. 36 (2004), this Court

redefined the “spatial reach” of the Confrontation Clause as

it relates to out-of-court statements. The pre-Crawford

paradigm, represented by Ohio v. Roberts, 448 U.S. 56

(1980), presupposed that the Clause reached all witness

statements—both in-court and out-of-court. Therefore, the

Clause’s purpose was defined singularly in terms of 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). In the context of out-of-

court statements, the question became whether the “truth-

finding functions of a criminal trial,” which devolved into a

synonym for cross-examination, were “functionally-served”

by something inherent in the class of hearsay evidence

under consideration. If so, “cross-examination by substitu-

tion” had been effected and the Clause was not offended.

Crawford leaves intact the body of jurisprudence emanat-

ing from the “truth-finding functions of a criminal trial” in

the context of in-court testimony and those out-of-court

statements that are “testimonial” and, therefore, subject to

the “spatial reach” of the Clause. Crawford, however, greatly

constricted the “spatial reach” of the Clause with respect to

out-of-court statements. No longer were the “truth-finding

functional rights” operative at trial the lodestar. Rather,

through the interpretive methodology of original meaning

construction, this Court determined that the Framers

enlisted the aid of these “truth-finding functions” to effectu-

ate a very different purpose in the realm of out-of-court

statements—to guard against the government creating “out-

of-court testimony” against the accused ex parte and then

introducing it at trial in lieu of live testimony. Crawford,

541 U.S. at 50. Based on experience, the Framers knew that

this abuse could be unchecked by a less than impartial

judicial gatekeeper.

3

The Confrontation Clause envisioned by the Framers,

therefore, closed the door to this particular brand of govern-

mental abuse by demanding that one who utters this

“specific type of out-of-court statement” (/d. at 51) be seen

for what he is—a “witness against” the “accused.” The out-

of-court statement, judged from the moment of its creation,

is then and there the “functional equivalent” of in-court

testimony and is, therefore, deemed “testimonial.” It is the

category of “testimonial” statements that defines the

“spatial reach” of the Clause with respect to out-of-court

statements. Once identified as “testimonial,” the Clause

demands that the out-of-court statement be subject to the

same “truth-finding functional rights” operative at trial.

Unless the government either brings the witness in or the

accused had a prior opportunity to cross-examine the

witness, the Clause operates as a categorical bar.

Thus, while the Confrontation Clause does enshrine “the

truth-finding functional rights” that are fundamental to our

adversarial system, the Clause has a decidedly different

purpose in the realm of out-of-court statements. Here, the

Clause was designed to act as a check on a very specific type

of governmental abuse—conducting pre-trial ex parte

examinations of witnesses and, thereby, creating evidence

that would be used against the accused at trial. The founda-

tional premises of both Petitioners’ arguments, therefore,

are in error. The definition of “testimonial” should not be

defined in order to vindicate the “truth-finding, functional

rights” of the Clause, as did the pre-Crawford paradigm and

as Petitioners now advance. The definition of “testimonial”

must logically be defined in terms of vindicating the purpose

already identified by this Court in Crawford of acting as a

check on governmental overreaching. Thus, the definition of

“testimonial” cannot be unmoored from the very purpose of

the Clause. It is within the confines of this purpose that this

Court must assess whether the 911 call in Davis (No. 05-

5224) and the crime disclosure statement in Hammon (No.

4

05-5705) are swept within the “spatial reach” of the Confron-

tation Clause as envisioned by our Framers.

This purpose of the Clause is reinforced by assessing its

individual role in the overall purpose of the Sixth Amend-

ment itself, the Bill of Rights as a whole and, indeed, the

entire body of our Constitution. Employing the same

original meaning interpretive methodology, in conjunction

with constitutional construction principles, the Confronta-

tion Clause’s role within the larger constitutional body of

guarding against governmental abuse emerges as the

animating principle. The Framers envisioned a systemic

response to governmental abuse—with each particular

provision serving its designed purpose. To press the Clause

into service to do the “heavy-lifting” in areas outside of its

intendment would do damage to the overall balanced design.

Therefore, when refining the definition of “testimonial,” the

Confrontation Clause simply cannot be unmoored from its

overall purpose, particularly when there are other constitu-

tional provisions better-suited and intended to accommodate

the systemic concerns expressed by Petitioners.

This same interpretive methodology must also be em-

ployed to ascertain the “temporal reach” of the Confronta-

tion Clause. Just as the Framers defined the “spatial reach”

of the Clause, as it relates to out-of-court statements, by use

of the phrase “witnesses against,” the Framers also tied the

“temporal reach” of the Clause to the term “accused” and the

phrase “criminal prosecution.” This text was deliberately

employed by the Framers to extend the “temporal reach” of

the Clause to effectuate its purpose. Neither the status of

“accused,” nor the “criminal prosecution” itself extends

infinitely backwards. The history out of which the Clause —

was borne was the “pre-trial, ex parte” abuses of the govern-

ment in creating and using out-of-court statements. There-

fore, a “testimonial” statement must be “created” at some

point on the investigatory/prosecutorial timeline when the

5

machinery of the State was focusing upon the “accused” as

an “accused.”

Through the same interpretive methodology employed to

ascertain the “spatial reach” of the Clause, this Court can

now flesh-out its “temporal reach.” Moreover, this Court can

and should synthesize its interpretation with its already-

existing Sixth Amendment jurisprudence, which teaches

that the purpose served by the individual right identifies the

place on the timeline when the right is triggered. However,

these Sixth Amendment rights all share the common

principle that they are somehow tied to the “accused” as an

“accused” within the machinery of a “criminal prosecution.”

Based on this interpretive methodology, both the 911 call

(Davis, No. 05-5224) and the crime disclosure statement

(Hammon, No. 05-5705) fall outside of the outer-limits of the

“temporal reach” of the Confrontation Clause.

ARGUMENT

I. THE CONFRONTATION CLAUSE WAS

DESiGNED TO GUARD AGAINST

GOVERNMENTAL OPPRESSION; THEREFORE,

ANY DEFINITION OF THE TERM “TESTIMO-

NIAL” MUST INCLUDE THE GOVERNMENT

PRODUCTION OF EX PARTE OUT-OF-COURT

TESTIMONY.

The Confrontation Clause provides, “In all criminal

prosecutions, the accused shall enjoy the right * * * to be

confronted with the witnesses against him.” U.S. Const.,

amend. VI. In Crawford v. Washington, 541 U.S. 36 (2004),

after over a quarter century of jurisprudence, this Court did

an “about face” and reunited the Clause with its historical

roots. Based upon an interpretive methodology of original

meaning construction, through history, historical inference

6

and adherence to the text itself, this Court concluded that

its previous presuppositions about the Clause, represented

by Ohio v. Roberts, 448 U.S. 56 (1980), were unsupportable.

The Crawford Court, therefore, threw out the entire pre-

Crawford paradigm and instituted an entirely new frame-

work that represented the true design of the Framers.

The pre-Crawford paradigm was premised upon the notion

that the Clause was all-encompassing, reaching al/ witness

statements—both in-court and out-of-court. Driven by

Wigmore’s postulate (Coy v. Jowa, 487 U.S. 1012, 1028-1029

(1988) (Blackmun, J., dissenting)), the Court reasoned that

cross-examination was the “primary interest secured by [the

Confrontation Clause]” because it is “critical for ensuring

the integrity of the factfinding process.” Kentucky v. Stincer,

482 U.S. 730, 736 (1987). Cross-examination and the other

“implications of the Confrontation Clause” (Maryland uv.

Craig, 497 U.S. 836, 863 (1990) (Scalia, J.,

dissenting))—placing the witness under oath and permitting

the jury to look upon the witness’ demeanor as he testifies

(California v. Green, 399 U.S. 149, 158 (1970))—combined to

“ensure 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.” Lilly v.

Virginia, 527 U.S. 116, 123-124 (1999). Under this frame-

work, the Confrontation Clause served to “protect[] * * *

essentially a ‘functional’ right designed to promote reliabil-

ity in the truth-finding functions ofa criminal trial.” Stincer,

482 U.S. at 737. The right of confrontation was found to be

“an essential and fundamental requirement for the kind of

trial which is this country’s goal.” Lee v. Illinois, 476 U.S.

530, 540 (1986).

Ironically, these purposes of the Clause, clearly effectual

only if the witness actually took the witness stand at trial,

were offered as the rationale for permitting and assessing

out-of-court statements under the aegis of the Clause. The

7

reasoning went—if cross-examination is the purpose, and

reliability is the goal, then an out-of-court statement can be

sufficiently reliable to pass muster under the Clause if it

“possess{es] indicia of reliability by virtue of its inherent

trustworthiness” (/daho v. Wright, 497 U.S. 805, 822 (1990))

such that “adversarial testing can be expected to add little

to its reliability” (White v. Illinois, 502 U.S. 346, 357 (1992)).

However, “[t]his reasoning abstracts from the right to its

purposes, and then eliminates the right.” Craig, 497 U.S. at

863 (Scalia, J., dissenting).

Pre-Crawford jurisprudence deliberately persevered in

this fiction for more than a quarter century, finding it

increasingly more and more difficult to develop a body of

cohesive precedent. Moreover, the Court persisted in this

paradigm, complete with multiple occasions of outright

refusal to pay heed to the historical forces which drove the

Framers to enshrine the Clause in the Bill of Rights in the

first instance and/or the text of the Clause itself. See, e.g.,

Green, 399 U.S. at 156-158; Roberts, 448 U.S. at 62-64;

Bourjaily v. United States, 483 U.S. 171, 181-182 (1987);

Stincer, 482 U.S. at 739-740; White, 502 U.S. at 352-353;

Lilly, 527 U.S. 116. In its zeal to arrogate onto the Confrof-

tation Clause the ability to monitor all hearsay, the Court in

White went so far as to actually reject the Framers’ own

words in the text of the Clause because “[s]uch a narrow

reading of the Confrontation Clause, [] would virtually

eliminate its role in restricting the admission of hearsay

testimony.” White, 502 U.S. at 352.

In short, the pre-Crawford paradigm suffered from

multiple logical systemic errors—all directly due to the

preconceived desire to monitor all hearsay under the rubric

of the Confrontation Clause. This framework simply refused

to account for history, text, or purpose in construing the

Clause. This Court, by employing an original meaning

interpretive methodology, rectified the logical errors upon

8

which the pre-Crawford framework was premised and

realigned the Clause with the Framers’ intendment.

After an extensive review of the history of both England

and the colonial periods leading up to the passage of the Bill

of Rights, the Court determined that the “the principal evil

at which the Confrontation Clause was directed was the

civil-law mode of criminal procedure, and particularly its

use of ex parte examinations as evidence against the ac-

cused.” Crawford, 541 U.S. at 50. That is not to deny the

laudable trial purposes of the Clause upon which the pre-

Crawford body of jurisprudence rested. Certainly, these

purposes are entirely accurate with respect to in-court

testimony and those out-of-court statements that are found

to come within the protective reaches of the Clause. This

Court simply rejected these trial-related goals outright as

somehow justifying if or how a particular out-of-court

statement came within the rubric of Confrontation Clause

scrutiny. What is clear is that the Framers did not erect the

Confrontation Clause as a “reliability-gauge” for all out-of-

court hearsay, as the pre-Craw/ford paradigm presupposed.

Rather, through resort to the very history which forged the

constitutional right and the Framers’ expression of their

intent through the text of the Clause itself, this Court

concluded that the Confrontation Clause, with respect to

out-of-court statements, was actually erected as a barrier

against governmental abuse.

Certainly, post-Crawford, in the context of the trial itself,

the Clause still represents “an affirmative guarantee that

testimony introduced against an accused must be given

under a prescribed procedure,” as Petitioner Hammon

rightly points out. (Hammon, No. 05-5705, Br. at 7; See also

Davis, No. 5-5224, Br. 17, 35) Indeed, cross-examination and

the other “implications of the Confrontation Clause”—the

premises upon which the pre-Crawford paradigm were

based—still represent the implicit “affirmative guarantees

of the procedure described” (Hammon, No. 05-5705, Br. at 9)

9

within the Clause under the Crawford framework. This

Court left the “truth-finding functions of a criminal trial”

purpose intact with respect to in-court testimony. Obviously,

the Clause affords an “accused” during the very “criminal

proceeding” at which the “witness against” him is testifying

the full protection of the procedural guarantee.

Moreover, Crawford “once again reject[ed] the view that

the Confrontation Clause applies of its own force only to in-

court testimony.” Jd. at 50. Thus, when an out-of-court

statement (offered substantively) is deemed to come within

the protective reaches of the Clause, these same “truth-

finding functions of a criminal trial” are fully requisite, as

well. Without either the witness on the stand or a prior

opportunity for cross-examination and unavailability, the

Clause erects a categorical barrier to the admission of that

particular out-of-court statement.

However, the essential premise of both Petitioners and

their Amici, that these “truth-finding functions” should be

the benchmark for assessing whether an out-of-court

statement should be swept within the “spatial reach” of the

Clause, suffers from the same logical infirmity as the pre-

Crawford paradigm. Crawford rejected this rationale

outright because the history and text of the Clause demon-

strated that whether an out-of-court statement came within

the “spatial reach” of the Clause in the first instance was

judged by a very different standard and was motivated by a

very distinct purpose—to guard against the governmental

abuse and overreaching that had periodically crept into their

adversary system through the implementation of civil-law

“controversial examination practices” actively employed by

the government and unchecked by the judiciary. Jd. at 47,

67.

To this end, the Framers enlisted the aid of the common

law procedural trial right through the text of the Confronta-

tion Clause to effectuate a very particular purpose with

10

respect to out-of-court statements—to guard against the

government creating “out-of-court testimony” against the

accused ex parte. The abuse began when the government

created the “ex parte examination” of the witness and was

completed when it was introduced “as evidence against the

accused” at his trial in lieu of live testimony. In this manner,

the government subverted the accused’s right to employ, at

trial, the arsenal of “truth-finding functions” on a live body

on the witness stand. It is this governmental creation of out-

of-court testimony in order to end-run the procedural

guarantees of the Confrontation Clause at trial that consti-

tuted the abuse.

Moreover, the Framers were none too comforted by the

fact that the out-of-court, government-created “testimony”

would pass through a judicial gate-keeper, given their equal

distrust of a judiciary beholden to the King. The reality of

this fact played out before their very eyes in the “politically

charged cases like Raleigh’s—great state trials where the

impartiality of even those at the highest level of the judi-

ciary might not be so clear.” Jd. at 67. In short, the Framers

“knew that judges, like other government officers, could not

always be trusted to safeguard the rights of the people” so

“they were loathe to leave too much discretion in judicial

hands.” Jd. at 67.

The Confrontation Clause envisioned by the Framers,

therefore, closed the door to this particular brand of govern-

mental abuse by demanding that one who utters this

“specific type of out-of-court statement” (/d. at 51) be seen

for what he is—a “witness against” the “accused.” As such,

when this particular type of out-of-court statement, termed

“testimonial,” is identified, it is subject to the same trial-

type adversarial testing mandated by the Confrontation

Clause for in-court testimony. If the witness is not put on

the stand or the accused had not had a prior opportunity to

subject the out-of-court statement to the rigors of ad-

versarial testing, the statement is categorically barred by

the Confrontation Clause.

11

Crawford, therefore, through its original meaning inter-

pretive methodology, attempted to lay out the “common

nucleus” and “various levels of abstraction around it” (Jd. at

51-52) of the “spatial reach” of the Clause—those out-of-

court “testimonial” statements that are generated by “the

modern practices with closest kinship to the abuses at which

the Confrontation Clause was directed” (Jd. at 68). Petition-

ers have proposed the following tests to identify these

“specific type[s] of out-of-court statements”: “whether a

reasonable person in the position of the declarant would

anticipate use of the statement in investigation or prosecu-

tion of a crime” (Hammon, No. 05-5705, Br. at 7) and

“whether a reasonable declarant would have anticipated that

her statement might be used for law enforcement purposes”

(Emphasis in original) (Davis, No. 05-5224, Br. at 41). While

Amicus has grave concerns about these tests for multiple

reasons’, Amicus would like to focus particularly upon

' Petitioners’ proposed tests are decidedly atextual and

ahistorical. Given this Court’s methodology of ascertaining the

meaning of the phrase “witnesses against,” Petitioners’ conten-

tions that this phrase seeks to ascertain whether the statement

at issue would perform the function of testimony when it is

introduced at trial (Hammon, Br. at 12-13; Davis, Br. at 41)

misses the mark. The question is whether the out-of-court

statement, at the momént of its utterance, is the functional

equivalent of in-court testimony at the time the statement is

made. Petitioners’ focus upon content is, again, contrary to the

history and text of the Clause. The term “accused” is a very

different thing than an “accusation.” If Petitioners are correct,

then this Court’s characterization of the out-of-court accusation

in Dutton v. Evans, 400 U.S. 74 (1970) as “nontestimonial”

(Crawford, 541 U.S. at 57) would be error. In addition to the

requisite governmental abuse component, what makes the out-of-

court statement “testimonial” is the simultaneous understanding

of the declarant that he was “bearing witness against the

accused” at that time, drawn from the circumstances under

which the statement was created. If this were not correct, then

(continued...)

12

Petitioners’ suggestion that the definition of “testimonial”

can be completely unhinged from any manner of governmen-

tal involvement in the creation of the out-of-court statement.

(Hammon, No. 05-5705, Br. at 10, 11, 17; Davis, No. 05-

5224, Br. at 13)

As stated, this conclusion necessarily derives from Petition-

ers’ view of the purpose of the Confrontation Clause, as it

relates to out-of-court statements, as a free-roving guarantor

of our adversarial principles upon out-of-court statements

that might end up in-court as prosecution “testimony.” If the

out-of-court statement accuses the “accused,”’ then it should

be subject to the rigors of adversarial testing else our

adjudicative system will come into disrepute. In other

words, Petitioners’ theories rest updn the commentary on

our adjudicative system that would result should it not be

deemed to interpret the term “witnesses against” utilized by

the Framers in the manner proposed by Petitioners.

Amicus has already pointed out that this rationale shares

much in common with the pre-Crawford framework already

rejected by this Court in Crawford. While admittedly

packaged somewhat differently, both share the overall

premise that the advancement of the truth-determining

process is the purpose of the Clause and, therefore, the end

in and of itself in the realm of out-of-court statements. More

(...continued)

this Court’s characterization of the declarant’s statement to the

F.B.1 informant in Bourjaily v. United States, 483 U.S. 171 (1987)

as “nontestimonia!” (Crawford, 541 U.S. at 58) would be equally

called into question. Finally, both proposed tests do not even

attempt to account for the “temporal reach” of the Clause, which

will be more fully addressed below.

> Upon careful scrutiny, the actual tests proposed by Petitioners

are not even limited to out-of-court “accusations.” For this

reason alone, much of Petitioner's rationale surrounding the

significance of accusations is not logically integral to their

ultimate conclusions.

13

importantly, however, Petitioners’ ideological misgivings

aside, this Court has already identified the Framers’ intent

with respect to the Clause’s role in the regulation of out-of-

court statements as one of guarding against “the civil-law

mode of criminal procedure and particularly its use of ex

parte examinations as evidence against the accused.” Jd. at

50: While Petitioner Hammon attempts to employ this

conclusion to underscore his operating premise (See

Hammon, No. 05-5705, Br. at 11, n. 7 (“the Court’s state-

ment in Crawford that ‘the principal evil at which the

Confrontation Clause was directed was the civil-law mode of

criminal procedure, and particularly its use of ex parte

examinations as evidence against the accused’ (citation)

should be interpreted in this light”)), his efforts are unavail-

ing for the simple reason that he refuses to accept that this

Court has already identified the Framers’ purpose with

respect to out-of-court statements—a purpose very different

than the one upon which Petitioners’ arguments are pre-

mised.

This Court found that the Clause, within the realm of out-

of-court statements, was designed to effect a check against

the government’s employment and use of civil law, pre-trial

examinations of witnesses to end-run the procedural

guarantees of the Confrontation Clause. It was the Framers’

fear of governmental abuse, both at the hands of the

investigatorial/prosecutorial entities, during the pre-trial

phase of the “criminal prosecution,” and the judiciary,

during the trial itself, out of which the Confrontation Clause

was forged.* The purpose of the Clause, therefore, was not

> Petitioner Hammon asserts that “it is not the police or prosecu-

tors or other questioners who violate the confrontation right.”

Rather, the abuse occurs “when a court admits the statement in

support of a prosecution without the accused having an opportu-

nity to confront the witness.” (Hammon, No. 05-5705, Br. at 17)

In other words, the abuse occurs at trial alone. In reality,

(continued...)

14

simply to glorify the adversarial process in and of itself but,

in the specific context of out-of-court statements, to guard

against governmental abuse. As a result, the government

evidence-producing component simply cannot be written out

of the “testimonial” equation.

That guarding against governmental abuse is the animat-

ing purpose of the Confrontation Clause, as it relates to out-

of-court statements, is clear from this Court’s interpretive

original meaning methodology employed in Crawford. The

Confrontation Clause was designed to afford an “accused” a

procedural mechanism to effect a balance of power between

himself and the machinery of the State so as to “safeguard|[]

against the restoration of proceedings which were so

oppressive and odious while they remained in force.” United

States v. Reid, 53 U.S. 361, 364-365 (1852).

As one commentator aptly explained this, “the procedural

dimension,” of confrontation doctrine is “based on an

unstated assumption that the right of confrontation re-

stricted the ability of the government to create and use

hearsay as a substitute for live testimony.” Roger W. Kirst,

The Procedural Dimension of Confrontation Doctrine, 66

Neb. L. Rev. 485, 487 (1987) (hereinafter, “Kirst, The

Procedural Dimension”). “The use of hearsay most closely

resembles trial by affidavit when the hearsay is created by

(...continued)

Professor Friedman's construct is an effort to account for

Professor Amar’s earlier observation that Friedman’s theory

“sidesteps a powerful counterargument rooted in a basic principle

of constitutional structure: the Constitution is mainly addressed

to state action.” Akhil Reed Amar, Confrontation First

Priniciples: A Reply to Professor Friedman, 86 Geo. L.J. 1045,

1048 (1998). To solve his “state action” problem, Friedman has

created another problem—he has ignored the very purpose of the

Clause in the realm of out-of-court statements. The abuse

consists of both the creation of ex parte testimony during the pre-

trial process and the introduction of it at trial.

15

the government in the investigation or prosecution of the

crime.” This “procedural dimension,” moreover, “has always

been an integral, but implicit, part of confrontation doc-

trine.” Kirst, The Procedural Dimension, 66 Neb. L. Rev. at

487.

Moreover, this purpose—to keep the power of the govern-

ment in check—only becomes clearer when viewing this Clause

as a component part of the Sixth Amendment itself. The

purpose of the Confrontation Clause identified by this Court in

Crawford fits seamlessly with fundamental principles of

constitutional construction on a larger scale. The Clause

cannot be interpreted in a vacuum, located as it is within

the Sixth Amendment, as a whole, which provides:

"In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an

impartial jury of the State and district wherein the

crime shall have been committed, which district

shall have been previously ascertained by law, and

to be informed of the nature and cause of the accu-

sation; to be confronted with the witnesses against

him; to have compulsory process for obtaining

witnesses in his favor; and to have Assistance of

Counsel for his defence.” U.S. Const., amend. VI.

Petitioners are correct in the sense that the Sixth Amend-

ment “includes a compact statement of the rights necessary

to a full defense[,]” which rights “are basic to our adversary

system of criminal justice.” Faretia uv. California, 422 U.S.

806 (1975). However, this Court’s jurisprudence with respect

to other individual rights within the Sixth Amendment

indicates that these, too, were erected by the Framers as a

systemic check on governmental abuse. For example, in

Klopfer v. North Carolina, 386 U.S. 213, 221-222 (1967), this

Court found that the Framers viewed the right to speedy

trial served to guard against governmental procedures that

“indefinitely prolong{ed]” the “oppression” inherent in the

16

“pendency of [an] indictment.” The right to a public trial,

emanating from the “Anglo-American distrust for secret

trials has been ascribed to the notorious use of this practice

* * * * [by] institutions [which] obviously symbolized a

menace to liberty,” was “recognized as a safeguard against

any attempt toemploy ours courts as instruments of persecu-

tion” because “[t]he knowledge that every criminal trial is

subject to contemporaneous review in the forum of public

opinion is an effective restraint on possible abuse of judicial

power.” Jn re Oliver, 333 U.S. 257, 268-269 (1948). Similarly,

this Court, based upon an assessment of the history of jury

trial at the time of our Founding Fathers, stated that “the

guarantees of jury trial in the Federal and State Constitu-

tions reflect a profound judgment about the way in which

law should be enforced and justice administered. A right to

jury trial is granted to criminal defendants in order to

prevent oppression by the Government.” Duncan v. Louisi-

ana, 391 U.S. 145, 155 (1968). See also Singer v. United

States, 380 U.S. 24, 31 (1965) (Art. III, § 2 jury trial clause

“was clearly intended to protect the accused from oppression

by the Government”); Ring v. Arizona, 536 U.S. 584, 611-612

(2002) (Scalia, J., concurring).*

The Framers deliberately elected to “bundle” these Sixth

Amendment rights together as a package. This Court has

employed the same interpretive methodology in discerning

the Framers’ intent with respect to these other Sixth

Amendment rights and came to the same conclusion as it did

in Crawford with respect to the Confrontation Clause: that

these Sixth Amendment rights, the defining characteristics

* The Compulsory Process Clause, too, was enshrined in the Bill

of Rights to guard against governmental oppression. This Clause

was included in the Sixth Amendment “in reaction to the

notorious common-law rule that in cases of treason or felony the

accused was not allowed to introduce witnesses in his defense at

all.” Washington v. Texas, 388 U.S. 14, 19 (1967).

17

of our adversary system, were also enshrined by the Fram-

ers to act as checks on governmental overreaching in both

the executive and judicial departments.

Moreover, grouped, as they are, within the Sixth Amend-

ment as a package, “each Sixth Amendment guarantee

should be interpreted in light of the rest of the Sixth Amend-

ment,” the “package” of personal procedural guarantees

“dovetail{s] to construct a forum that will not only find facts,

but will also be a check on governmental overreaching.”

Randolph N. Jonakait, Notes for a Consistent and Meaning-

ful Sixth Amendment, 82 J. Crim. L. & Criminology 713,

734-735 (1992). In short, the Confrontation Clause plays a

“supporting role * * * in restraining the capricious use of

government power.” Margaret A. Berger, The

Deconstitutionalization of the Confrontation Clause: A

Proposal for a Prosecutorial Restraint Model, 76 Minn. L.

Rev. 557, 560 (1992) (hereinafter, “Berger, Prosecutorial

Restraint”); See also Taylor v. Illinois, 484 U.S. 400, 410

(1988) (Sixth Amendment rights, with the exception of

compulsory process, “shield the defendant from potential

prosecutorial abuses”); Duncan, 391 U.S. at 154 (“Those who

emigrated to this country from England brought with them

this great privilege [of jury trial] ‘as part of their birthright

and inheritance, as a part of that admirable common law

which had fenced around and interposed barriers on every

side against the approaches of arbitrary power.”’) (citations

omitted).

This interpretation of the Clause is given further textual

support by its location within the Bill of Rights. In the words

of commentator Akhil Reed Amar, “much is lost by the

clause-bound approach that now dominates constitutional

discourse.” Akhil Reed Amar, The Bill of Rights as a Consti-

tution, 100 Yale L.J. 1131(1991). “Perhaps as a consequence

of the parceling out of constitutional issues among several

law school courses, the particular guarantees of the amend-

—

18

ments have been studied in a fragmented manner that

obscures the grand design of the Bill of Rights and its

relationship to the Constitution, and is at odds with ordi-

nary canons of statutory analysis.” Berger, Prosecutorial

Restraint, 76 Minn. L. Rev. at 560.

Thus, again in keeping with fundamental constitutional

construction principles, the Confrontation Clause must also

be interpreted in conjunction with the Bill of Rights and,

indeed, the Constitution as a whole. It has been said that

“the Bill of Rights was never intended to serve as a source of

government power. Rather, its raison d etre is to function as

a limitation on that power.” Edward J. Imwinkelried, The

Constitutionalization of Hearsay: The Extent to Which the

Fifth and Sixth Amendments Permit or Require the Liberal-

ization of Hearsay Rules, 76 Minn. L. Rev. 521, 538 (1992).

“The Bill of Rights [is] a political document with a principal

objective of restraining the power of the government vis-a-

vis the individual.” Berger, Prosecutorial Restraint, 76 Minn.

L. Rev. at 561; See also Benton v. Maryland, 395 U.S. 784,

795-796 (1969) (“underlying notion” of the Double Jeopardy

Clause, that “the State with all its resources and power

should not be allowed to make repeated attempts to convict

an individual for an alleged offense” is one that “has from

the very beginning been part of our constitutional tradi-

tion”); Doe v. United States, 487 U.S. 201, 212 (1988) (Fifth

Amendment privilege against self incrimination,

“thjistorically, * * * was intended to prevent the use of legal

compulsion to extract from the accused a sworn communica-

tion of facts which would incriminate him” and, therefore,

“(t]he major thrust of the policies undergirding the privilege

is to prevent such compulsion.”); Malloy v. Hogan, 378 U.S.

1, 22 (1964) (“It follow|s}] from the recognition that due

process encompassed the fundamental safeguards of the

individual against the abusive exercise of governmental

power that some of the restraints on the Federal Govern-

ment which were specifically enumerated in the Bill of

19

Rights applied also against the States.”); Reid v. Covert, 354

U.S. 1, 44 (1957) (Frankfurter, J., concurring) (“The Consti-

tution is an organic scheme of government to be dealt with

as an entirety. A particular provision cannot be dissevered

from the rest of the Constitution.”).

Again, this Court’s jurisprudence bears this out. In United

States ex rel. Toth v. Quarles, 350 U.S. 11, 16 (1955), this

Court explained that “[t]he Constitution and the Amend-

ments in the Bill of Rights show that the Founders were not

satisfied with leaving determination of guilt or innocence to

judges, even though wholly independent [by virtue of Article

III]. * * * * Other safeguards designed to protect defendants

against oppressive governmental practices were included.”

Similarly, in Hurtado v. California, 110 U.S. 516, 531-532

(1884), this Court early on recognized that:

“(t]he concessions of Magna Charta were wrung

from the King as guarantees against the

oppressions and usurpations of his prerogative. * *

* * In this country written constitutions were

deemed essential to protect the rights and liberties

of the people against the encroachments of power

delegated to their governments, and the provisions

of Magna Charta were incorporated into Bills of

Rights. They were limitations upon all the powers of

government, legislative as well as executive and

judicial.”

Perhaps Amicus’ point could not be better encapsulized by

the following statement by this Court: “The rights and

liberties which citizens of our country enjoy are not pro-

tected by custom and tradition alone, they have been

jealously preserved from the encroachments of Government

by express provisions of our written Constitution,” which

this Court described as “the remarkable collection of ‘Thou

shalt nots’ which were explicitly fastened on all departments

and agencies of the Federal Government by the Constitution

and its Amendments.” Reid v. Covert, 354 U.S. at 6-7, 9.

20

Therefore, fundamental principles of constitutional

construction lend further support to the fact that the

Crawford Court correctly viewed the Confrontation Clause

as a check on governmental oppression in the realm of out-

of-court statements. The Clause, like the remainder of the

Sixth Amendment, the Bill of Rights and the Constitution

itself, was designed to guard against the government abuse

while acting within its awesome powers against the individ-

ual. In perfect harmony with this design, this Court in

Crawford identified the historical force which drove the

Clause: the “involvement of government officers in the

production of testimony with an eye toward trial [that]

presents unique potential for prosecutorial abuse—a fact

borne out time and time again throughout a history with

which the Framers were keenly familiar.” Crawford, 541

U.S. at 56, n. 7. It was not abuse by the executive body

alone, however, that the Framers employed the Confronta-

tion Clause to check. The Framers “knew that judges, like

other government officers, could not always be trusted to

safeguard the rights of the people” and they were, therefore,

“loathe to leave too much discretion in judicial hands.” Jd. at

67-68. The Confrontation Clause, therefore, erects a categori-

cal barrier against the creation of ex parte testimony by the

executive body against the accused becaitse the Framers also

“had an eye toward politically charged cases like

Raleigh’s—great state trials where the impartiality of even

those at the highest level of the judiciary might not be so clear.”

Id. at 68.

Thus, to suggest, as Petitioners do, that the definition of

“testimonial” statements need not include any government-

production-of-evidence component is simply error of the highest

degree. Their premise, that our system of adversarial adjudica-

tion might be compromised if this Court were to faithfully

interpret the purpose of the Confrontation Clause as a check on

governmental oppression in the realm of out-of-court state-

ments simply misses the mark.

21

Whether or not Petitioners like it, this is the adversarial

system that our Framers set up—one that was forged from a

distinct historical focus and purpose and defined specifically by

the actual words of the text of the Clause itself and its role

within the larger constitutional scheme. To interpret the

Clause in the manner Petitioners advocate would drag it out of

its natural role within the system set up by the Framers and

require it to do all the “heavy lifting” outside of its natural

intendment. Petitioners neglect to account for the fact that

other constitutional provisions were designed to and are better-

suited to accommodate Petitioners’ concerns. As discussed ~

above, the Constitution itself was designed by the Framers to

systemically guard against governmental oppression—a system

that operates most effectively when each provision operates

within its own sphere and according to its own purpose and

design.

This Court has already identified the purpose of the Confron-

tation Clause within this system: to guard against “the civil-

law mode of criminal procedure, and particularly its use of

ex parte examinations as evidence against the accused.” Jd.

at 50. As this Court recognized long ago,

“Legal doctrines are not self-generated abstract

categories. * * * They have a specific juridical origin

and etiology. They derive meaning and content from

the circumstances that gave rise to them and from the

purposes they were designed to serve. To these they

are bound as is a live tree to its roots.” Reid v. Covert,

354 U.S. at 50 (Frankfurter, J., concurring).

Amicus, therefore, urges this Court not to unmoor the defini-

tion of “testimonial” from the purpose and intendment of our _

Framers, as Petitioners would have this Court do.

22

Il. THE “TEMPORAL REACH” BACKWARDS OF THE

CONFRONTATION CLAUSE WITHIN THE PRE-

TRIAL PROCESS SHOULD BE SYNTHESIZED

WITH THIS COURTS ALREADY-DEVELOPED

SIXTH AMENDMENT JURISPRUDENCE.

In Crawford v. Washington, 541 U.S. 36 (2004), this Court

employed an original meaning interpretive methodology to

ascertain the “spatial reach” of the Confrontation Clause as it

relates to out-of-court statements, by focusing upon the

purpose of the Clause and the text itself with respect to the

phrase “witnesses against.” Amicus now urges this Court to

address itself to the “temporal reach” of the Clause by employ-

ing this same methodology to ascertain the meaning of the

term “accused” and the phrase “criminal prosecution.” Fortu-

nately, this Court has already built up a large body of jurispru-

dence in this regard with respect to several other constitutional

rights contained also in the Sixth Amendment. In keeping with

the principles of constitutional construction, Amicus urges this

Court to synthesize the meaning of these phrases within the

Confrontation Clause with the already-developed principles of

Sixth Amendment jurisprudence, generally.

The Framers employed the phrase “witnesses against”

within the text of the Clause to delimit what type of out-of-

court statements come within its reach. Crawford, in essence,

was a roadmap for identifying “the modern practices with

closest kinship to the abuses at which the Confrontation

Clause was directed.” Jd. at 68. Because Crawford focused on

the crucial phrase “witnesses against,” it sought to identify the

qualities that a particular out-of-court statement must possess

in order to come within the “spatial reach” of the Clause.

The text of the Clause, however, also contains terminology

identifying the “temporal reach” of the Clause. An ex parte

statement and “controversial examination practices” (/d. at

47)—necessarily presuppose “parties,” in the first instance, and

“involvement of government officers in the production of

23

testimony with an eye toward trial” (Jd. at 56, n. 7), in the

second instance. These phrases, of necessity, carry with them

temporal qualities, identifying the relative place on the

investigatory/prosecutorial timeline during which an out-of-

court statement must be produced in order to qualify as

“testimonial.” The two “reaches” of the Clause—both spatial

and temporal—in fact, dovetail to identify a relative point on

the investigatory/prosecutorial timeline that a statement must

be uttered in order to qualify as “testimonial.”

Thus, any test for the definition of “testimonial” must also

account for the “temporal reach” of the Clause intended by the

Framers. Surely, the history and historical inferences of the

Clause identified in Crawford indicate that the statements

must come into existence during the pre-trial process—at some

point in time when the government, police or prosecutor— is

actually preparing its case against the accused. If Petitioners

are correct in their proposed tests for the definition of a

“testimonial” statement, then the absence of any governmental

involvement whatsoever would permit the category of out-of-

court statements to extend backwards in time to a point

outside of the temporal limits of the pre-trial process.° Peti-

tioner Hammon refers to a scenario where a private party

relays information about an offense to another private party

before the authorities are even aware of the offense, much less

in the pre-trial stage of the prosecution. (Hammon, No. 05-

5705, Br. at 11) Petitioner Davis defines his test in terms of

“whether declarants reasonably would have anticipated that

their statements might be used for law enforcement purposes.”

(Davis, No. 05-5224, Br. at 13) Astatement might be made well

in advance of a pre-trial stage and still be used, at some point

> In fact, Petitioner Hammon describes a determination that an

out-of-court statement was “nontestimonial” as “quite startling”

(Hammon; No. 05-5705, Br. at 20)—where the statement was

made nearly two years prior to the offense. See, Hammon, No.

05-5705, Br. at 20, n. 20, citing State v. Barnes, 854 A.2d 208,

210-12 (Me. 2004).

24

further along the timeline, “for law enforcement purposes.”

Quite simply, Petitioners advocate definitions of “testimonial”

that are well beyond the reaches of the Clause “spatially,” as

discussed above, and “temporally,” as well.®

Moreover, the relative point on the investigatory/prosecutorial

timeline for an out-of-court statement to come within the

“temporal reach” of the Clause is also indicated by an examina-

tion of the text of the Clause, as this Court undertook in

Crawford. In addition to the phrase “witnesses against,” which

this Court explained in Crawford, the Clause also speaks to an

“accused” during a “criminal prosecution.” This Court, however,

has already developed a body of jurisprudence regarding the

meaning of these words and their relationship in the context of

other Sixth Amendment rights. Therefore, because the term

“accused” and the phrase “criminal prosecution” speak com-

monly to all the Sixth Amendment rights, principles of consti-

tutional construction dictate that the meaning ascribed to this

text in the context of the Confrontation Clause must somehow

be unified, in principle, with Sixth Amendment jurisprudence.

In United States v. Wade, 388 U.S. 218 (1967), this Court

addressed itself to the application of the Sixth Amendment

right to counsel in the context of a post-indictment lineup,

concluding that “the Sixth Amendment guarantee [of counsel]

applfies] to ‘critical’ stages of the proceedings.” Jd. at 224.

® As discussed in footnote 3, Petitioner Hammon’s position is

that the abuse occurs at trial when the court admits the out-of-

court statement. This may, superficially, counter Petitioner's

“temporal reach” problem. However, Petitioner's entire theory

rests upon an erroneous premise, refusing to take this Court’s

identification of the abuse at which the Clause was directed at

face value. The abuse consists of both the creation of “ex parte

examinations” during the pre-trial process and the introduction

of that examination into evidence at trial. Petitioner cannot

obviate his “temporality” problem by simply crafting another

purported abuse which happens to occur only at the trial itself.

25 :

Finding that the right applied to this government procedure,

this Court reasoned that, “in addition to counsel’s presence at

trial, the accused is guaranteed that he need not stand alone

against the State at any stage of the prosecution, formal or

informal, in court or out, where counsel’s absence might

derogate from the accused’s right to a fair trial.” Jd. at 226. In

refining this principle, however, this Court in Kirby v. Illinois,

406 U.S. 682 (1972), explained that the right to counsel is

triggered “at or after the initiation of adversary judicial

criminal proceedings” because this “is the starting point of our

whole system of adversary criminal justice.” The Kirby Court

continued: . ‘

“The initiation of judicial criminal proceedings is far

from a mere formalism. It is the starting point of our

whole system of adversary criminal justice. For it is

only then that the government has committed itself to

prosecute, and only then that the adverse positions of

government and defendant have solidified. It is then

that a defendant finds himself faced with the prosecu-

torial forces of organized society, and immersed in the

intricacies of substantive and procedural criminal law.

It is this point, therefore, that marks the commence-

ment of the ‘criminal prosecutions’ to which alone the

explicit guarantees of the Sixth Amendment are

applicable.” Jd. at 689; See Gerstein v. Pugh, 420 U.S.

103, 121 (1975) (“Because of its limited function and

its nonadversary character, the probable cause deter-

mination is not a ‘critical stage’ in the prosecution that

would require appointed counsel.”).

Thus, the Kirby Court keyed upon the explicit term “criminal

prosecutions” within the text of the Sixth Amendment and the

purpose of the particular right at issue, in determining how far,

temporally, the right to counsel contained in the Sixth Amend-

ment reached backwards on the prosecutorial timeline.

In United States v. Ash, 413 U.S. 300 (1973), this Court made

explicit what had been implicit in prior precedent. The Ash

26

Court explained that, while the “historical background [of the

right to counsel] suggests that the core purpose of the counsel

guarantee was to assure ‘Assistance’ at trial, * * * [ljater

developments have led this Court to recognize that ‘Assistance’

would be less than meaningful if it were limited to the formal

trial itself.” Jd. at 309. Further, “[t]}his extension of the right to

counsel to events before trial has resulted from changing

patterns of criminal procedure and investigation that have

tended to generate pretrial events that might appropriately be

considered to be parts of the trial itself.” Jd. at 311. However,

this Court in Ash refused to extend this right to a post-indict-

ment photo display identification, even though it fell within the

“temporal reach” of that constitutional provision, because the

purpose the right to counsel was designed to serve in the pre-

trial arena was not at issue in the procedure under scrutiny.

Id. at 317-321; See also Maine v. Moulton, 474 U.S. 159, 176

(1985) (“[T]he Sixth Amendment [right to counsel] is not

violated whenever—by luck or happenstance—the State

obtains incriminating statements from the accused after the

right to counsel has attached.”).

Finally, in United States v. Gouveia, 467 U.S. 180 (1984), this

Court tied the entire jurisprudential rationale for the attach-

ment of the right to counsel to the purpose and text of the

Amendment. In declining to find that the right to counsel

attached while petitioners were in prison administrative

detention but before the return of indictments against them,

the Court held fast to its “initiation of adversary judicial

proceedings” rule as the point on the prosecutorial timeline in

which the right to counsel attaches. The Gouveia Court

explained, “[t]hat interpretation of the Sixth Amendment right

to counsel is consistent not only with the literal language of the

Amendment, which requires the existence of both a ‘criminal

prosecution’ and an ‘accused,’ but also with the purposes which

we have recognized that the right to counsel serves.” Jd. at 188;

See also Michigan v. Jackson, 475 U.S. 625, 632 (1986) (“after

a formal accusation has been made—and a person who had

27

previously been just a ‘suspect’ has become an ‘accused’ within

the meaning of the Sixth Amendment—the constitutional right

to the assistance of counsel is of such importance that the

police may no longer employ techniques for eliciting informa-

tion from an uncounseled defendant that might have been

entirely proper at an earlier stage of their investigation.”).

Perhaps to make matters clear, this Court subsequently, in

Moran v. Burbine, 475 U.S. 412 (1986), refused to extend the

right to counsel further back in time to a prearraignment

confession, even when an attorney retained by the defendant's

sister was misled while trying to get in contact with the

defendant and in the face of argument that “police questioning

often seals a suspect's fate” (Id. at 431-432). This Court

explained:

“{The] purpose [of the right to counsel] is to assure

that in any ‘criminal [prosecution] (emphasis in

original) U.S. Const., Amdt. 6, the accused shall not be

left to his own devices in facing the ‘prosecutorial

forces of organized society.’ (citations omitted) By its

very terms, it becomes applicable only when the

government’s role shifts from investigative to accusa-

tion. For it is only then that the assistance of one

versed in the ‘intricacies of the law’ (citations omitted)

is needed to assure that the prosecution’s case encoun-

ters ‘the crucible of meaningful adversarial testing.’

(citation omitted)” Jd. at 430.

As this body of Sixth Amendment right to counsel jurispru-

dence reveals, this Court has taken great pains to temporally

tie the text of the Sixth Amendment to the particular pre-trial

governmental form of oppression against which the right was

meant to guard. Because the Sixth Amendment right to

counsel is one of “Assistance” at trial, it only reaches back into

the pre-trial prosecutorial process to a point where the “govern-

ment’s role shifts from investigative to accusation” because, at

this moment—-the initiation of adversarial judicial proceed-

28

ings—counsel is needed to act as an “equalizer” between the

machinery of the government and the accused. Without counsel

at this point in the process, the “accused’s” right to the “Assis-

tance” of counsel] at trial would be meaningless. However, and

importantly, even if the pre-trial abuse occurs within the

“temporal reach” of the right to counsel, the right is not

automatically triggered. It is only triggered when the govern-

mental abuse at issue has a nexus to the purpose for which the

right was designed.

In the context of another Sixth Amendment right, the right

to speedy trial, this Court’s rationale remains the same. In

United States v. Marion, 404 U.S. 307, 314 (1971), this Court

stated that, “[ojn its face, the protection of the Amendment is

activated only when a criminal prosecution has begun and

extends only to those persons who have been ‘accused’ in

the course of that prosecution.” However, the Marion

Court extended this right backward on _ the

investigatory/prosecutorial timeline to “the actual restraints

imposed by arrest and holding to answer a criminal charge.”

Id. at 320. In keeping with the methodology devised in the

context of the Sixth Amendment right to counsel, because the

right to speedy trial served to guard against governmental

procedures that “indefinitely prolong[ed]” the “oppression”

inherent in the “pendency of [an] indictment” (Klopfer v.

North Carolina, 386 U.S. 213, 221-222 (1967)), the Court

determined that the “public act” on the part of the government

in arresting someone would visit oppression upon an arrestee

similar to that visited upon one who is charged and, therefore,

an “accused.” Id. at 320. The Marion Court, however, refused

to extend this right further backwards to pre-indictment

because “until [arrest], a citizen suffers no restraints on his

liberty and is not the subject of public accusation: his situation

does not compare with that of a defendant who has been

arrested and held to answer.” Jd. at 321.

Thus, some clear principles emerge from examining this

Court's jurisprudence in the context of the Sixth Amendment

29

rights to counsel and speedy trial. In both cases, this Court

recognized the fact that the rights were organized around the

“criminal proceeding” itself. The “accused” then is unde: stood

to be an “accused,” at a point on the investigatory/prosecutorial

timeline when the “machinery of the State” trains its sights

upon the individual. However, as demonstrated above, this

Court has been careful to tie the initiation of the particular

right during the pre-trial phase to a point in time, specific to

the right itself, when the governmental oppression against

which the right serves to guard can jeopardize the trial

interests served by the right. In the context of right to counsel,

it was “to protect the accused during trial-type confrontations

with the prosecutor” (Gouveia, 467 U.S. at 190) while, with the

right to speedy trial, the purpose was to guard against the

oppression inherent in the government’s “public act” of arrest

(Marion, 404 U.S. at 320). However, it is not enough that the

purported “abuse” occur within the “temporal reach” of the

constitutional provision at issue. The “abuse” must also be

committed by the government and must share a nexus with

the purpose and abuse against which the particular nght was

designed to guard.

So, too, should this Court employ this same method of

analysis when ascertaining the “temporal reach” backward of

the Confrontation Clause, given that it shares the same

constitutional amendment as the rights to counsel and speedy

trial. This Court should interpret the term “accused” and the

phrase “criminal proceeding” in keeping with the history and

the purpose the Confrontation Clause was designed by the

Framers to serve in the context of out-of-court statements. As

the Clause was “directed [at] the civil-law mode of criminal

procedure, and particularly its use of ex parte examinations as

evidence against the accused,” (Crawford, 541 U.S. at 50), this

Court should fix the “temporal reach” of the Clause to a

point during the pre-trial process when the

investigatory/prosecutorial machinery of the State is in a

position to produce this type of “examinatio1..” However, it is

not enough to come within the “temporal reach” of the Clause,

30

as this Court’s Sixth Amendment jurisprudence teaches. The

statement must also be created by the government, ex parte,

with an eye toward the “accused’s” “criminal prosecution.” In

other words, the “spatial reach” of the Clause discussed in

Section I of Amicus’ argument, and the “temporal reach” of the

Clause, discussed herein, will necessarily dovetail when an out-

of-court statement is truly “testimonial.”

Petitioners’ position that a “testimonial!” statement can be

made even prior to the pre-trial phuse—when the

investigatory/prosecutorial machinery of the government has

not yet even considered mobilizing against the “accused” to

gear up for a “criminal proceeding’—should be rejected out of

hand. Wherever this Court decides to fix the “temporal

reaches” of the Clause on the investigatory/prosecutorial

timeline, both the 911 call (Davis, No. 05-5224) and the

disclosure of a crime to the first responding officer (Hammon,

No. 05-5705) clearly fall outside of both the “spatial reach” and

the “temporal reach” of the Confrontation Clause. In addition

to not being government-produced whatsoever and, therefore,

not qualitatively “testimonial,” in both instances, the investiga-

tory/prosecutorial machinery of the State could not have

possibly been focusing upon the defendants as “accuseds” in

“criminal prosecutions” within Sixth Amendment jurispru-

dence. Both the 911 call and the crime disclosure statement

were the first revelations to the authorities that a potential

crime had even been committed. The police were not even

within the pre-trial process when these statements were made,

much less focusing upon these men as “accuseds” in prepara-

tion for their “criminal prosecutions.” The statements simply

fall outside of the “temporal reach” of the Confrontation

Clause, as defined by history, text, and this Court’s own Sixth

Amendment jurisprudence.

CONCLUSION

For the reasons set forth above, this Court should affirm

the judgments in Davis (05-5224) and Hammon (05-5705).

31

Respectfully submitted,

RICHARD A. DEVINE

County of Cook, Illinois,

State’s Attorney,

Counsel of Record

JAMES E. FITZGERALD,

ANNETTE N. COLLINS,

VERONICA MALAVIA CALDERON

SUSAN R. SCHIERL SULLIVAN

309 Richard J. Daley Center,

Chicago, Illinois 60602

(312) 603-5496