Confronting Crawford

• Publication year: 2021

85 Nebraska L. Rev. 417. Confronting Crawford

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Daniel Huff(fn*)

Confronting Crawford

TABLE OF CONTENTS

I. Introduction ...................................................... 418

II. The Precedent, the Facts, and the Reasoning ...................... 419
III. What is Testimonial Hearsay? .................................... 424
IV. Unavailability and Nontestimonial Hearsay ........................ 428
V. Unavailability and the Forfeiture Doctrine ........................ 433
VI. Prior Opportunity for Cross-Examination .......................... 437
VII. Retroactivity ................................................... 439
VIII. The Confrontation Right in Civil Cases ......................... 447
IX. Conclusion ....................................................... 451

In Shakespearean tragedy, horrific acts create a break in the great chain of being, a tear in the cosmic fabric that must be set right. Certain events are marred by such flagrant and gross injustice that they are seared into the collective memory. Our historical conscience impels us to prevent their recurrence. To the Framers of the Constitution, such an event was the case of Sir Walter Raleigh. Raleigh was tried at Winchester, in 1603, on charges of conspiring with a certain Lord Cobham to unseat King James I. While he languished in the Tower of London, Cobham signed a confession in which he implicated Sir Walter. Cobham promptly retracted, so the Crown dared not produce him at trial. Instead, their chief piece of evidence was the written confession. Raleigh bitterly protested the introduction of this dubious but damning confession absent opportunity to question its author. His plea was rebuffed. Raleigh was convicted and beheaded.

One hundred and eighty-six years later in the sweltering summer heat of New York City, the First Congress drafted the Sixth Amendment which requires that "[i]n all criminal prosecutions, the accused shall enjoy the right to . . . be confronted with the witnesses against him."(fn1) It was ratified in 1791. The exact requirements of this provision and its interplay with the common law hearsay exceptions

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have long been the subject of litigation. For years, the controlling Supreme Court precedent on the question was Ohio v. Roberts, under which courts could admit any hearsay they deemed reliable.(fn2) But in the spring of 2004, the Court upset the equilibrium with its bold decree that regardless of reliability, testimonial hearsay is only admissible if the witness is unavailable and there was prior opportunity for cross-examination.(fn3) Not surprisingly, the pronouncement raised more questions than it answered, and the Court left it to the lower courts to sort out ambiguities and fill the gaps. This Article examines the Crawford decision and its aftermath, looking at the problems Crawford raised and the solutions lower courts have found.

A central argument of this Article is that the logic of the Crawford decision flows directly into an analytical framework for resolving the difficult issues the decision raises. The Crawford doctrine protects less (i.e., only testimonial evidence), but is more rigorous as to that which is protected (i.e., it disapproves of Roberts's reliability exception). Following this approach, where proffered evidence is testimonial, doubts surrounding admissibility must be resolved in the defendant's favor. For example, the standard of evidence necessary to extinguish a confrontation claim on the grounds of forfeiture by wrongdoing should be clear and convincing rather than a preponderance. However, when the evidence is nontestimonial, doubts surrounding it should be resolved in favor of the government. Thus, nontestimonial hearsay should not trigger Confrontation Clause scrutiny at all, instead of a residual, Roberts-like reliability test courts continue to apply.

Following the introduction, Part II reviews the historical precedents leading up to the Crawford decision, the facts of the case itself, and the reasoning. Part III examines what constitutes testimonial hearsay. Part IV examines the definition of unavailability and the question of what rule controls nontestimonial hearsay. Part V examines unavailability and the limits of a confrontation right forfeiture by wrongdoing. Part VI canvasses the contours of adequate opportunity for cross-examination. Part VII concerns the extent to which the decision applies retroactively. Part VIII, like Rule 807 of the Federal Rules of Evidence, is a residual. It probes the confrontation right in civil cases.

I. INTRODUCTION

At the outset, it is imperative to understand the distinction between the Confrontation Clause and rules of evidence. The hearsay

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evidence rules are layered on top of whatever constitutional requirements the Confrontation Clause imposes. Both may protect the same interests, but the Confrontation Clause represents the minimum safeguards of fairness for the defendant. States are free to be more defendant-friendly, but they cannot be less.

It is also easy to assume that the way things are is the way they had to be. That the accused has a right to confront his accusers seems a proposition almost too obvious to state. But there is logic to the other view. At Raleigh's trial, the judges justified their decision as follows:

[W]here no circumstances do concur to make a matter probable, then an accuser may be heard; but so many circumstances agreeing and confirming theaccusation in this case, the accuser is not to be produced; for having first confessed against himself voluntarily, and so charged another person, if we shall now hear him again in person, he may for favour or fear retract what formerlyhe hath said, and the jury may, by that means, be inveigled.(fn4)

Theirs is not a frivolous concern. Codefendants routinely confess initially only to later repudiate their testimony at trial. It is this phenomenon which drives the Bruton line of cases dealing with when and under what circumstances courts can admit a codefendant's confession at a joint trial.(fn5) The difficulties only arise because the codefendant has repudiated the confession. The Raleigh court insists that where there is corroborating evidence of guilt, it is not unreasonable to read in the confession without producing the witness, who would only deny the affair entirely. If this reasoning strikes one as circular, consider Rule 801(d)(2)(E) of the Federal Rules of Evidence, which admits a coconspirator's statement made in furtherance of the conspiracy provided the court find by the preponderance of the other evidence that a conspiracy exists.(fn6) Both cases purport to admit codefendant statements where there is corroborating evidence of wrongdoing, on the theory that the standard to admit evidence should not be as high as the standard of proof for conviction. It is, however, far too late in the day for this argument. The choice of the Framers is made.

II. THE PRECEDENT, THE FACTS, AND THE REASONING

In 1965, the Confrontation Clause was made applicable to the states through the Due Process Clause of the Fourteenth Amendment.(fn7) In a series of subsequent cases, the Court articulated just what that right entailed. For years, the controlling Supreme Court precedent on the question was Ohio v. Roberts, under which courts

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could admit any hearsay they deemed reliable.(fn8) The Roberts doctrine starts from the premise that any hearsay statement offered against a criminal defendant must be analyzed under the Confrontation Clause.(fn9) However, where the out-of-court declarant is unavailable, the confrontation right is satisfied without actual cross-examination as long as the statement bears "indicia of reliability."(fn10) The measure of reliability is of two forms. The statement must either fall within a firmly rooted hearsay exception, such as a dying declaration, or it must exhibit "particularized guarantees of trustworthiness."(fn11)

The Roberts requirement of unavailability was initially straightforward. "[W]hen a hearsay declarant is not present for the cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable."(fn12) Mere absence is insufficient. Courts do not want the state shielding witnesses from a defendant's probing questions. But six years later, the Court limited the requirement when it found in United States. v. Inadi that a showing of unavailability was not a prerequisite for admitting coconspirator statements made in the course of the conspiracy. The Court reasoned that coconspirator statements are inherently more reliable and do not present the same problems as the hearsay statements the Court dealt with in Roberts.(fn13) "Roberts stands for the proposition that unavailability analysis is a necessary part of the Confrontation Clause inquiry only when the challenged . . . statements were made in the course of a prior judicial proceeding."(fn14)

Under Roberts, statements falling within firmly rooted hearsay exceptions were automatically admissible regardless of the particular facts of the situation.(fn15) These included statements made by a coconspirator during and in furtherance of the conspiracy,(fn16) as well as other narrowly defined hearsay exceptions, such as excited utterances, recorded recollections, business records, and dying declarations. Notably absent was the exception for declarations against penal interest, a category the Court thought too broad to claim firmly rooted status.(fn17)

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Irrespective of pedigree, hearsay was also admissible if the circumstances surrounding the hearsay declaration lent it particularized guarantees of trustworthiness. However, the Court made clear in Lee v. Illinois(fn18) that interlocking confessions are presumptively unreliable. Statements made once in custody, in contrast to statements made in furtherance of a conspiracy, are offered...