An Accuser-obligation Approach to the Confrontation Clause

• Publication year: 2021

81 Nebraska L. Rev. 1258. An Accuser-Obligation Approach to the Confrontation Clause

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Sherman J. Clark(fn*)

An Accuser-Obligation Approach to the Confrontation Clause

TABLE OF CONTENTS

I. Introduction .......................................... 1258
II. Refocusing Confrontation Analysis ..................... 1259
III. The Meaning of Confrontation .......................... 1264
IV. A Witness-Focused Doctrine ............................ 1271
A. The Unavailability Requirement ..................... 1274
B. Dying Declarations ................................. 1277
C. Declarations Against Interest ...................... 1278
D. Child Witnesses .................................... 1280
V. Conclusion ............................................ 1285

I. INTRODUCTION

This Essay argues that the Confrontation Clause of the Sixth Amendment ought to be re-understood as primarily an accuser's obligation rather than primarily as a defendant's right. We demand that those who would perform this potentially dangerous, morally weighty, and symbolically loaded act the act of accusation be willing to do so face to face. We impose this requirement not only because out-of-court accusations are unreliable, though they may often be, but also in response to a deep, if inchoate, feeling that it is somehow beneath us inconsistent with our sense of who we want to be as a community to allow witnesses against criminal defendants to "hide behind the shadow" when making an accusation.(fn1) On this interpretation, requiring confrontation is a way of reminding ourselves that we are, or least want to see ourselves as, the kind of people who decline to countenance or abet what we see as the cowardly and ignoble practice of hidden accusation. This approach, though perhaps not mandated by the text or history of the Confrontation Clause, is at least as consistent

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with both as is the current analytical framework, which treats the right of confrontation as an appendage to the rule against hearsay.

Viewing the Confrontation Clause in this way would not require courts to make dramatic changes in the application of the clause. Most cases, in fact, would come out the same way as under regnant caselaw, with the re-interpretation simply providing a better and more coherent explanation for current doctrine. An accuser-obligation model does, however, offer several benefits. First, it frees confrontation doctrine from its dependence on the reliability-based analysis governing the hearsay rule and provides the Confrontation Clause with a separate rationale befitting its constitutional status. Hearsay analysis focuses on whether testimony is sufficiently reliable; while the Confrontation Clause, on this reading, focuses on whether it is worthy of respect. Second, by providing a coherent and appealing grounding for the confrontation requirement, an accuser-obligation approach would allow for the reasoned and principled, rather than ad hoc, development of the law in difficult and troubling areas, such as the proper treatment of statements against interest and the testimony of child witnesses. Finally, and at a more theoretical level, recognizing that, under some circumstances, the meaning of confrontation may be as significant as its consequences highlights the way in which important legal traditions and principles can both reflect and constitute community identity and self-perception.

II. REFOCUSING CONFRONTATION ANALYSIS

Under the Sixth Amendment, a criminal defendant has the right "to be confronted with the witnesses against him."(fn2) The confrontation right has generally been understood as a right on the part of defendants to test the accuracy of trial evidence, and has long been equated with the right to cross-examination.(fn3) This, in turn, has caused the Confrontation Clause to be treated as strongly analogous to the rule against hearsay. The standard reading is that defendants are protected from uncross-examined testimony for the same reason courts limit the admissibility of out-of-court statements generally reliabil

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ity. In the words of the United States Supreme Court, "the Confrontation Clause's very mission [is] to advance `the accuracy of the truthdetermining process in criminal trials.' "(fn4) Or, more recently, "[t]he central concern of the Confrontation Clause is 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."(fn5)

This approach has produced a doctrine which is, to say the least, unsatisfactory, and under which the Confrontation Clause has become lost in the arcana of the rule against hearsay. The details of the current doctrine are beyond the scope of this Essay, and have been welldocumented by others.(fn6) For present purposes the upshot is clear enough. Whether the introduction of an out-of-court statement satisfies the requirements of the Confrontation Clause depends largely on whether the statement fits within an exception to the hearsay rule. Even where the limits of the confrontation right do not map precisely the contours of the hearsay rule, the analysis displays an extremely hearsay-like emphasis on the reliability of the statement.(fn7) No one likes this state of affairs; no one thinks that it makes sense to let the tail wag the dog in this fashion. Justice Breyer, for example, concurring in Lilly v. Virginia, recognized that recent scholarship calls out for a re-evaluation of the hearsay-driven approach to confrontation.(fn8) The doctrinal confusion, however, should not come as a surprise. As long as we assume that the Confrontation Clause serves the same purpose as the rule against hearsay, it will be difficult to avoid conflating the analyses.

Untangling the doctrines depends, therefore, on unraveling the underlying rationales. That has proven difficult. Other than protecting defendants from unreliable evidence, what ends are served by the

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Confrontation Clause? My colleague Richard Friedman has argued that reliability is not the raison d'etre for the clause. Instead, he claims, "[t]he confrontation right, like the oath, is one of the fundamental conditions governing the giving of testimony."(fn9) He has it exactly right I think, as far as he goes, but we need to go farther. Why should we see confrontation as a "fundamental condition" other than to insure the reliability of testimony? Why, other than "to advance `the accuracy of the truth-determining process in criminal trials,' "(fn11) might we want to consider this requirement so important?

It seems to me that this question can best be answered through a subtle but crucial shift in the way in which we understand the right a shift from a defendant-focused to a witness-focused view of confrontation. The Confrontation Clause should be understood not solely as a right enjoyed by criminal defendants, but also, even primarily, as an obligation imposed upon would-be witnesses. Confrontation is not only something to which we are entitled once accused; it is something we are required to do if we seek to act as accusers. From the defen-dant's perspective, it is not so much a right to confront witnesses, as a right to require witnesses to confront you. We have decided that if one is willing to play this central, crucial role in taking a man's liberty, one ought also to be willing to look him in the eye and literally stand behind his accusation. More to the point, and recognizing the strong sense in which rules of criminal procedure are a form not only of selfregulation but also self-definition, we have decided that we want to be the kind of people who stand face to face with those we would accuse.

Let me be clear: the Confrontation Clause is about making sure defendants can cross-examine state witnesses and thereby put the state's evidence to the test. Everyone from Coke to Blackstone to Wigmore to the current United States Supreme Court has recognized that a key benefit of the confrontation right is that it aids in the search for truth.(fn11) I might even go so far as to agree that the primary purpose of

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criminal procedure in general is or ought to be to protect the innocent and insure the accuracy of verdicts. I recognize as well that the criminal justice system might well serve other consequentialist aims besides those directly related to the case at hand and its outcomes the deterrence of police misconduct being a primary example.(fn11) The question here is whether consequentialist aims provide a complete expla

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nation for every aspect of our system of criminal procedure, and of the Confrontation Clause in particular.

I think not. I think that the particular ways in which we have decided to go about protecting the innocent and seeking truth have come to play an important role in the life of the nation. I have argued elsewhere that the criminal trial jury, though primarily a truth-seeking device, and perhaps secondarily a hedge against government power, also plays a significant, if tertiary, function in helping us to define and express a sense of what it means to be a member of this polity.(fn11) Here I make a similar claim regarding the Confrontation Clause.

Framed in this way, analysis of the clause raises two distinct though inter-related sorts of questions. First, what might we as a community be trying to say about ourselves by requiring prosecution witnesses to confront those they accuse? What does it mean? What vision of community identity might be constructed or reinforced through enforcement of the confrontation requirement? My answers to these questions will necessarily be partial and tentative. I cannot demonstrate conclusively the social meaning of the Confrontation Clause. Meanings do not work that way. What I can do is describe the ways in which attributing a certain meaning to a rule might...