'Confronting' foreign intelligence: Crawford roadblocks to domestic terrorism trials.

• Author: Scott, John

1. INTRODUCTION

   In the first decade of this century, a central preoccupation of American foreign policy has been the rise of international terrorism. (1) This phenomenon provokes questions about the interrelation of international and domestic criminal law, constitutional interpretation, intelligence gathering, and military strategy. Now, after the challenges of the last eight years, the rhetoric (if not yet the reality) of American policy on terrorism seems to be changing. (2) The attempt to transfer prosecution from military tribunals to Article III courts is exemplary of this overall shift. But there are deeper legal issues at play beyond the political repercussions of this shift. (3) A recent line of cases from the Supreme Court has the potential to make the process of trying suspected terrorists more complicated than it need be. (4) Crawford v. Washington and its progeny have articulated a new standard for Confrontation Clause analysis and in so doing have raised significant questions about the future admissibility of certain evidence in criminal trials. (5)

   The goal of this Comment (6) is to analyze the new confrontation rule from Crawford to determine what types of challenges its more rigorous testimonial evidence standard poses for prosecutors in future terrorism cases. Subpart II.A will provide background on the relevant cases, discussing the Court's holding in Crawford as well as its subsequent clarification in Davis v. Washington. Subpart II.B will describe the two primary federal regulations governing specific rules applicable to the use of foreign intelligence at trial. Part III will argue that the new Confrontation Clause standard potentially conflicts with these federal regulations and analyze the costs this conflict could impose on the government. Lastly, Part IV will attempt to weigh the merits of potential solutions and assess the likelihood of their adoption.

2. BACKGROUND

   1. CRAWFORD: CHANGING THE RULES

      The Confrontation Clause of the Sixth Amendment states "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him...." (7) The common law developed a general antipathy towards the introduction of hearsay evidence and it is thought the Confrontation Clause embodies the same general principle. (8) The common law also disfavors reliance upon ex parte testimony presented through affidavits. (9) Defendants have the right to compel witnesses against them to appear and then to cross-examine those witnesses to test for weaknesses in their testimony. (10)

      On its face, the Confrontation Clause seems to require a blanket prohibition of any statement made by a declarant not testifying at trial. (11) Such a shallow reading, however, would abrogate centuries of common law precedent recognizing a variety of valid hearsay exceptions. (12) Treating the words in the Confrontation Clause as a literal command would be far too extreme and out of line with the intentions of the Framers. (13) Therefore, the challenge for the courts is to balance the constitutionally enshrined preference for face-to-face testimony in criminal trials and the right to cross-examine hostile witnesses with the workaday realities of a functioning criminal justice system. (14)

      In 1980, the Supreme Court set out a test for evidence challenged under the Confrontation Clause that attempted to strike just such a balance. (15) The Court determined in Ohio v. Roberts that the Sixth Amendment guaranteed a substantive right to challenge the reliability of evidence at trial. (16) The defendant in this case was charged with forgery. (17) At a preliminary hearing, the defense attorney called the daughter of the victim and attempted in vain to get her to admit to authorizing the defendant's use of the checks and credit cards in question. (18) At trial, the defendant took the stand and testified that the daughter had in fact authorized him to use those checks and cards. (19) Between the deposition and the trial, the daughter had run away from home and her whereabouts were unknown. (20) Consequently, the prosecutor sought to introduce her testimony from the preliminary hearing to rebut the respondent's statements. (21) This evidence was admitted, the transcript was read to the jury, and the defendant was convicted. (22) The conviction, however, was overturned on appeal. (23)

      The United States Supreme Court granted certiorari and reversed the decision of the Ohio Supreme Court. (24) The Court held that the testimony at the preliminary hearing was admissible under the Confrontation Clause because it bore "sufficient 'indicia of reliability' and afforded the 'trier-of-fact a satisfactory basis for evaluating the truth of the prior statement.'" (25) In prior cases the Court had recognized that certain hearsay exceptions "rest upon such solid foundations that admission of virtually any evidence within them comports with the 'substance of the constitutional protection.'" (26) These holdings supported the principle that even if certain evidence is not tested through cross-examination at trial, it is nevertheless constitutionally "safe" because it has either been tested prior to trial, or the surrounding circumstances indicate that the trier-of-fact can trust the evidence. (27) These exceptions are "firmly rooted" as they have been examined and tested by the courts over time, and ensure as "strict an adherence to the truth as would the obligation of an oath." (28)

      1. The Crawford Revolution

         Until 2004, the holding in Roberts was recognized as the proper approach to the problem of reconciling hearsay exceptions with the Confrontation Clause. (29) Courts evaluated the "reliability" of disputed evidence and gave significant weight to exceptions cataloged in the Federal Rules of Evidence. (30) In 2004, however, the Court announced a radical departure from this established process. (31) It abandoned the case-by-case analysis of Roberts, for (at least on the surface) a more dogmatic analysis of the "testimonial/non-testimonial" character of the evidence. (32) According to the majority in Crawford v. Washington, the Roberts Court had its Sixth Amendment analysis wrong: the Confrontation Clause is a procedural guarantee, not a substantive one. (33) And as a procedural right, it does not bow to competing policy interests or notions of judicial efficiency.

         In August 1999, Michael Crawford was arrested for murder. (34) Crawford was accused of stabbing Kenneth Lee in Lee's apartment after Lee allegedly attempted to rape Crawford's wife. (35) Crawford claimed at trial that he had gone to the victim's apartment to confront him about this, and while he was there a fight broke out. (36) Crawford claimed that during this fight he stabbed Lee in self-defense. (37)

         This version of events conflicted with a statement made by Crawford's wife to the police on the night of the incident. (38) Crawford's wife did not testify at trial, but the prosecution introduced the tape recording under the statement-against-interest hearsay exception. (39) After being convicted, Crawford challenged the admission of the tape. The Washington Supreme Court upheld his conviction, concluding that: "although [Crawford's wife's] statement did not fall under a firmly rooted hearsay exception, it bore guarantees of trustworthiness." (40)

         The Supreme Court granted certiorari and reversed the Washington Supreme Court. While the Roberts Court held that the Confrontation Clause provides a substantive right to reliable evidence, Justice Scalia stated that the Clause is primarily concerned with ensuring direct, face-to-face confrontation at trial. (41)

         In reaching this conclusion, Justice Scalia took a long view of history and drew on sources dating as far back as the Roman Empire. (42) In particular, he focused his attention on one specific incident: the trial, and subsequent execution, of Sir Walter Raleigh in 1603 for treason. (43) In that trial, the Crown relied primarily on the accusations of Lord Cobham, Raleigh's supposed co-conspirator. (44) Cobham made a statement accusing Raleigh of treason to the Privy Council prior to trial as well as in a separate letter. (45) While Cobham did not testify at trial, both of these records were read to the jury. (46) Raleigh argued that these statements were coerced, but his entreaties to bring Cobham before the jury for cross-examination were ignored. (47)

         The fallout of the Raleigh "show trial" influenced both British and American jurisprudence by solidifying the importance of confrontation and cross-examination. (48) The Crawford opinion highlights how attempts by the Government to introduce untested ex parte evidence were met with resistance in both England and the Colonies. (49) Moreover, the primacy of face-to-face confrontation was recognized even after the drafting of the Constitution. (50) Justice Scalia cited opinions from the early years of the American republic in which the requirement of face-to-face confrontation and cross-examination continued to be "uncompromising." (51)

         The Crawford Court specifically rejected the Roberts reliability test. In its place, the Court stated that any testimonial evidence not testified to at trial will be excluded, unless the witness is unavailable and the defendant had previously cross-examined the testimony. (52) According to Justice Scalia, under the Roberts regime, courts had lost sight of this important principle of trial procedure. (53) The central holding of Crawford is that admission into evidence of a tape-recorded witness statement to police officers violates the Constitution's uncompromising mandate. (54) According to Justice Scalia, the Confrontation Clause excludes all testimonial hearsay evidence. (55) In this new regime, there is no room for an inquiry into reliability. The Court went so far as to ridicule such a standard, remarking that "[d]ispensing with confrontation because testimony is obviously reliable is akin to dispensing with...