CHAPTER 11 CONFRONTATION CLAUSE

• Jurisdiction: United States

Chapter 11 CONFRONTATION CLAUSE

§ 11.01 OVERVIEW

The Confrontation Clause, a part of the Sixth Amendment, provides that: "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him."¹ Due to its incorporation through the Due Process Clause of the Fourteenth Amendment,² "this bedrock procedural guarantee"³ applies in both state and federal prosecutions.

Prior to incorporation, the Confrontation Clause was only applied in a handful of federal cases,⁴ so that in 1970 Justice Harlan could describe the obscurity of the Framers' intentions with the oft-quoted statement that the language of the Confrontation Clause "comes to us on faded parchment."⁵ Subsequently, however, there has been a great deal of academic research into the origins and historical context of the Clause.⁶ While the implications of this history remain controversial, the Supreme Court has, for more than one hundred years, insisted that the "primary purpose" of the Clause was to prevent the use of ex-parte affidavits "in lieu of a personal examination and cross-examination of the witness."⁷

What ends does the Confrontation Clause advance by requiring testimony in court, as opposed to allowing ex-parte affidavits? The Supreme Court has provided several answers:⁸ First, the confrontation right helps ensure an adversarial criminal process by allowing for cross-examination, " 'the greatest legal engine ever invented for the discovery of the truth.' "⁹ Second, by insuring that witnesses make their statements under oath, in open court, in front of the accused and subject to cross-examination, the confrontation right promotes witness truthfulness.¹⁰ Third, in-court examination, in contrast to an ex parte affidavit, allows jury observation of the witness' demeanor, "thus aiding the jury in assessing his credibility."¹¹

With these purposes in mind, the Court has found the Confrontation Clause relevant both to what testimony may be given at a criminal trial and to the manner in which it may be given.

Regarding what testimony may be given at trial, the Supreme Court, until recently, "tended to equate the Confrontation Clause with the hearsay exceptions that are found in the Federal Rules of Evidence."¹² In other words, evidence that was admissible as an exception to the hearsay rules generally did not run afoul of the Confrontation Clause. (Indeed, for this reason, most Criminal Procedure classes left the bulk of this subject to the Evidence class.) In Crawford v. Washington,¹³ however, the Court threw "a boulder into the placid waters of Confrontation Clause jurisprudence."¹⁴ The Court shifted the focus of the Confrontation Clause inquiry from the question whether the proffered out-of-court statement was reliable (the focus of the hearsay rules) to whether it was "testimonial" — an as yet undefined term that does, at a minimum, include statements made in grand jury testimony, preliminary hearings, or during a police interrogation. This paradigm shift is considered in greater detail in the next section.¹⁵

With regard to the manner in which testimony is given, the Confrontation Clause "guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact."¹⁶ In order to protect victims of child abuse, however, many jurisdictions have enacted alternative means for child witnesses to provide testimony in such cases. The Court has approved such alternative means over Confrontation Clause objections in certain circumstances. This issue is also addressed below.¹⁷

Finally, there is one special situation that has received extended attention from the Court. When the out-of-court statement of defendant A implicates codefendant B, the Court has concluded that, when A and B are tried jointly, the statement poses an intolerable risk to the interests protected by B's confrontation right, even if the judge gives a limiting instruction.¹⁸ Therefore, under the "Bruton rule," where any such statement is to be used against A, A and B cannot be tried together. This doctrine is more fully explained in a separate section below.¹⁹

§ 11.02 OUT-OF-COURT STATEMENTS BARRED BY THE CONFRONTATION CLAUSE

[A] Background²⁰

[1] Hearsay Rules and Confrontation

Hearsay is an out-of-court statement made by someone other than the person testifying at trial that is being offered to prove the truth of the matter asserted in the statement.²¹ For example, at D's trial for killing V, W's testimony that "X said D killed V" would be hearsay because X is not the one testifying, and it is being used to prove the truth of the matter asserted — that D killed V. Such out-of-court statements may be verbal, as in this example, or they may be written, or they may even come in the form of nonverbal conduct (e.g., W's testimony that "when I asked X if D killed V, Xnodded"). Under evidence rules, hearsay is inadmissable unless it falls within one of the exceptions to the hearsay rules, though there are many such exceptions.

A literal reading of the Confrontation Clause might present an absolute barrier to the admission of any hearsay evidence against a defendant,²² since the person making the out-of-court statement (X in the example above) could be considered "a witness" against the defendant, and X's statement is not made at the trial with the usual protections (especially cross-examination) that flow from the Confrontation Clause.²³ The Supreme Court, however, has "long rejected" such a result as "unintended and too extreme."²⁴ Instead, the Court noted early on that the Confrontation Clause's preference for witness testimony at the trial "must occasionally give way to considerations of public policy and the necessities of the case."²⁵ But when do "public policy" and "the necessities of the case" allow admission of statements made out of court? The Court first proffered a test (now rejected, at least in part) in Ohio v. Roberts.²⁶

[2] Ohio v. Roberts

In Roberts, R was charged with possessing stolen credit cards belonging to I. R testified at his trial that I's daughter had given him the credit cards with the understanding that he could use them. The prosecution tried to call I's daughter to rebut this assertion, but she had left the state and could not be located. I's daughter had testified, however, at R's preliminary hearing (subject to "the equivalent of cross-examination" by R's counsel), and in that testimony she had denied giving R the credit cards without informing him that she lacked permission to use them. The transcript of this preliminary hearing testimony was admitted at R's trial, and he was convicted. In the Supreme Court, R argued that admission of the transcript violated his rights under the Confrontation Clause because he was not able, at his trial, to cross-examine the statements of I's daughter.

Recognizing that the Court previously had followed a case-by-case approach to determining when the Confrontation Clause allowed the admission of hearsay, Justice Blackmun's opinion for the Court in Roberts concluded that "a general approach to the problem is discernible." The Court summarized this approach as follows: "[W]hen a hearsay declarant is not present for cross-examination at trial . . . his statement is admissible only if it bears adequate 'indicia of reliability.' " Such reliability is found automatically if the statement "falls within a firmly rooted hearsay exception." Otherwise, "the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness." The Court then rejected R's claim, relying on previous cases in which the Court had allowed the use of prior, cross-examined testimony of unavailable witnesses in the face of Confrontation Clause challenges. (There is a hearsay exception in such circumstances.²⁷)

Over time, the Supreme Court concluded that many hearsay exceptions were sufficiently "firmly rooted" to satisfy the Confrontation Clause and, under the Roberts framework, "federal courts basically held that all but two of the Federal Rules hearsay exceptions are firmly rooted."²⁸ As to "particularized guarantees of trustworthiness" outside of the firmly rooted hearsay exceptions, "the ^reme Court never identified any facts where the guarantees were sufficient to admit the hearsay"²⁹ in the face of a Confrontation Clause objection. Lower courts, however, did do so — in a number of cases, they approved admission of out-of-court statements not subject to cross-examination on the basis of the "particularized guarantees of trustworthiness" branch of the Roberts framework.³⁰

[B] Crawford v. Washington³¹

[1] The Decision

In Crawford v. Washington, the Supreme Court rejected the Roberts framework. In Crawford, C and his wife S went to L's apartment to confront L about an earlier incident in which L allegedly had tried to rape S. When they found L at his apartment, a fight ensued in which C stabbed L in the chest and also had his own hand cut. Later that night, under police interrogation, C and S gave similar descriptions of what had happened, but with one potentially crucial difference: C said he thought L reached for and grabbed something before C stabbed L, whereas S's statement indicated that L reached for his pocket only after C began attacking him.

At his trial for assault and attempted murder, C claimed self-defense. S was barred from testifying by the state's marital privilege. The prosecution introduced S's tape-recorded statement to the police, arguing to the jury that it "completely refutes [C's] claim of self-defense." C was convicted of assault.

On appeal, C argued that admission of S's out-of-court statement to the police violated his rights under the Confrontation Clause because he was not able to cross-examine S. Applying the test of Ohio v. Roberts, the state supreme court affirmed the conviction. Although S's statement did not fall within a "firmly rooted hearsay exception," the court concluded that it had sufficient "guarantees of trustworthiness,"...