Confronting Crawford v. Washington in the lower courts.

• Author: Keenan, Dylan O.
• Position: Introduction through I. Confrontation Clause Doctrine Before and After Crawford, p. 782-809

INTRODUCTION I. CONFRONTATION CLAUSE DOCTRINE BEFORE AND AFTER CRAWFORD A. The Sixth Amendment Right of Confrontation Before Crawford B. Crawford's Reformulation of Confrontation Clause Doctrine C. Davis's Refinement of Crawford D. Further Refinements: Melendez-Diaz, Bryant, and Williams II. EMPIRICAL EVIDENCE A. The Data Set B. Descriptive Statistics C. Stepwise Logistic Regression Analysis D. Limitations of the Data III. ANALYSIS A. The Confrontation Clause, Consistently B. Lower-Court Decisions and the Meaning of Confrontation CONCLUSION APPENDIX A: CODING APPENDIX B: INTERCODER RELIABILITY INTRODUCTION

The Supreme Court's decisions in Crawford v. Washington (1) and its progeny reshaped Confrontation Clause doctrine. (2) Repudiating the Court's earlier focus on the reliability of out-of-court hearsay, Crawford held that the Confrontation Clause (3) provides defendants with a right to cross-examine only those declarants who made "testimonial" out-of-court statements. (4) The Court did not, however, comprehensively define testimonial statements in either Crawford or any of its subsequent Confrontation Clause opinions. (5) Most academics and lower courts consider Crawford's reformulation of Confrontation Clause doctrine to be a radical one. (6) A minority argues that Crawford did not depart quite so substantially from the pre-Crawford doctrine. (7) The descriptive debate about the consequences of Crawford is supplemented by a lively debate about the normative desirability and legal reasoning of the decision. (8) Despite those disagreements, scholars generally agree that Crawford's stated doctrine is vague and that lower courts have struggled to apply it.

In this Note, I focus on that final problem: the ambiguity of Crawford-line decisions. Crawford announced a new rule for evaluating Confrontation Clause challenges, but it offered three different tests for applying the rule. (9) Subsequent decisions added a fourth test but failed to eliminate any of the original ambiguity. (10) Not surprisingly, scholarly "[c]riticism of Crawford's ambiguity abounds." (11) The Crawford line has been described as "vague[]," (12) "uncertain," (13) "unpredictable," (14) a "mess," (15) "almost arbitrary," (16) "incoherent," (17) and "an exercise in fiction." (18) These descriptions appear reasonable. To apply Crawford, lower courts must decide whether a statement is testimonial. Yet the Court has repeatedly refused to define testimonial statements, and has instead gestured towards certain "clues" that might indicate whether a statement is testimonial. (19) Lower-court splits lend credence to these critiques. In the immediate wake of Crawford, states and circuits split on how to apply Crawford in common circumstances: 911 phone calls, (20) statements by children, (21) and forensic analyses. (22) This criticism only intensified in the wake of Michigan v. Bryant (23) and Williams v. Illinois, (24) two of the Court's most recent Confrontation Clause cases.

This Note challenges the conventional wisdom about Crawford's vagueness through a rare large-scale empirical analysis of post-Crawford decisions. (25) Although the Supreme Court's doctrine is quite muddled, (26) this Note presents empirical evidence that lower courts have reached predictable and consistent results in Confrontation Clause cases. (27) This evidence shows that lower courts effectively employ a two-step process. (28) First, lower courts almost never apply the Confrontation Clause to statements not made to a state actor, finding that such statements are nontestimonial under Crawford. Second, lower courts are much less likely to find even statements to state actors to be testimonial when those statements are made in the context of a medical emergency.

After presenting the results of my empirical analysis, I argue that this two-step approach to Confrontation Clause cases is not only consistent but also defensible. First, consistency among lower courts refutes common claims that Crawford's doctrinal uncertainty borders on arbitrariness, leading to irrational and inconsistent decisions. Second, lower courts have converged on a doctrinally and textually grounded interpretation of the Confrontation Clause. Their framing reflects the underlying aims of the Clause, and the animating concerns of Crawford.

This Note proceeds as follows: Part I describes the Confrontation Clause before and after Crawford. Part II describes my method of analysis, including the data I collected and the method of multiple logistic regression. Part III argues from my analysis that Crawford in the lower courts is not the mess that some commentators have claimed. I conclude by suggesting that lower courts have made sense of Crawford, despite its muddled doctrine, by applying the Confrontation Clause to limit the state's coercive investigatory power.

1. CONFRONTATION CLAUSE DOCTRINE BEFORE AND AFTER CRAWFORD

This Part describes the Court's Confrontation Clause doctrine before and after Crawford. The Court has refined the concept of "testimonial" hearsay through both dictionary-style definitions and factors that help courts apply those definitions. The Court has declined to choose among these sometimes-contradictory definitions, and it has failed to specify any relationship between factors and definitions or to prioritize particular factors. I hope to highlight the resulting complexity of the Court's present doctrine. The Court's main tests remain uncertain and cryptic, implying contradictory results when applied to particular fact patterns.

1. The Sixth Amendment Right of Confrontation Before Crawford

   The Confrontation Clause of the Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." (29) Courts have not faced great difficulty in applying the Confrontation Clause to statements made in court. (30) For example, suppose that A is on trial for murder. B testifies at A's trial that he saw A commit the murder. The Confrontation Clause guarantees that A will have the opportunity to know B's identity, to be present when B testifies, and to cross-examine B about his statements. (31) There is no plausible way to define "witness" under which B is not a witness against A. (32)

   Applying the Confrontation Clause to out-of-court statements presents courts with a more challenging problem. (33) Under the most restrictive reading, the Confrontation Clause does not apply to any out-of-court statements. (34) The restrictive reading of the Clause finds support in a narrow definition of the word "witness." If one defines a witness as a person testifying against the accused at trial, then the plain language of the Clause limits its application to in-court statements. (35) At the other extreme, one might extend the Clanse's reach to cover all statements introduced at...