AuthorKatz, Joshua


Phil Parhamovich was pulled over on 1-80 in Wyoming. (1) He had changed lanes improperly, and his seat belt was not fastened. (2) Seven hundred seventy-five dollars would have been a reasonable fine. After all, Wyoming law requires seat belts. (3) Failure to wear a seat belt is not grounds for a traffic stop, (4) but if an officer stops a driver for some other reason, the officer is required to note whether the driver was wearing a seat belt; if so, the fine is reduced by $10. (5) Otherwise, the fine will be increased by $25. (6) On the other hand, improper lane usage is grounds for a traffic stop. (7) A first offense is punishable by a fine of $200, or imprisonment for twenty days, or both. (8) Depending on the circumstances, improper lane usage could also be reckless driving, (9) which carries a fine of $750, six months' imprisonment, or both. (10) Parhamovich nearly lost $91,800."

The money represented his life savings; he was on his way to Wisconsin, where he planned to buy a music studio. (12) During the traffic stop, though, under intensive questioning, he lied. (13) When police suggested that the money was indicative of drug crimes and led Parhamovich to believe, incorrectly, that simply carrying so much cash was illegal, (14) he claimed it belonged to a friend. (15) The money was seized under suspicion that it--not Parhamovich--had been involved in a drug crime. (16) Since Parhamovich had denied the money was his, he could not claim it. (17) The fictional friend, of course, also could not claim the money. (18) As a result, the State of Wyoming maintained that the money was abandoned. (19) The State maintained this, in part, because of Parhamovich's statement that the money was not his. (20) This statement is hearsay, (21) but would be admissible, at least prima facie, as an opposing party statement. (22)

At first glance, the Crawford doctrine might seem to supersede the opposing party statement exclusion. (23) This doctrine prohibits the admission of testimonial hearsay against criminal defendants. (24) Testimonial hearsay includes statements to the police during non-emergency investigations. (25) Parhamovich's traffic stop was, at least arguably, not an emergency. (26) The police, attempting to discover the source of Parhamovich's money, were, at least arguably, in an investigatory phase. (27) The Crawford doctrine might bar the use of this testimonial hearsay in court. (28) But Parhamovich's attorney could not make these arguments, for two reasons. First, Parhamovich did not receive notice of the forfeiture hearing. (29) Second, even if he had been present or represented by counsel, the Crawford doctrine would not have applied. That is because the Crawford doctrine applies only in criminal cases, (30) and civil asset forfeiture proceedings are not considered criminal. (31) Yet the money was taken only because police suspected a crime. They presumably suspected Parhamovich was involved in the crime, but even if not, they believed the money was involved in the crime. (32) Absent the suspicion that Parhamovich had committed a crime, he would not have faced forfeiture. (33)

What is more, the proceeding, technically a civil case between the State of Wyoming and Parhamovich's money, put Parhamovich in far greater jeopardy than his criminal case. (34) Yet, under the Crawford doctrine, he would be protected by the Sixth Amendment from the admission of similar statements in his criminal case, (35) but not his civil case. Justice Scalia, writing the Court's opinion in Crawford, held that this strict bifurcation-- the full range of hearsay exclusions and exceptions applying in civil cases, while being superseded by the Constitution for certain forms of testimonial hearsay in criminal cases--was mandated by the Constitution's text, as understood through historical precedent in Rome, England, and the early United States. (36)

This Note casts doubt on Scalia's historical analysis. It argues that the historical sources cited in Crawford and later cases suggest that the concerns regarding testimonial hearsay also apply in certain civil contexts. Civil asset forfeiture is a prime candidate: it shares important characteristics of criminal proceedings (37) and imposes comparable penalties. Even if the Sixth Amendment is inapplicable in such proceedings, the logic of Crawford suggests that, as a policy matter, confrontation should be available in civil asset forfeiture proceedings. (38) This could be done through legislation or through amendment of the Federal Rules of Evidence (FREs).

This Note suggests that Crawford protections should be extended to citizens, like Phil Parhamovich, facing asset forfeiture. Part I explains the Crawford doctrine and its reasoning. Part II explores the history of Confrontation Clause jurisprudence in the United States and suggests that it belies a rigid separation between civil and criminal contexts. Part III suggests two ways in which civil asset forfeiture might be brought under the Crawford umbrella and suggests further extensions of the Crawford doctrine into civil contexts.


    In 2003, the Supreme Court took up Crawford v. Washington. (39) Michael Crawford had been convicted of stabbing Kenneth Lee, a man he accused of attempting to rape his wife. (40) While Mr. Crawford did not deny the stabbing, he asserted a claim of self-defense. (41) Crucial to this defense was the question of whether Mr. Lee had drawn a weapon prior to being stabbed. (42) Mr. and Mrs. Crawford both made statements to the police. They differed slightly on this question. (43) Mrs. Crawford's statements made the self-defense claim less credible. (44) At trial, Mrs. Crawford was barred from testifying under state spousal privilege laws. (45) However, Mrs. Crawford's statements to the police were admissible under a hearsay exception in the state rules of evidence, (46) and they were admitted at trial over Mr. Crawford's objection. (47) The jury found Mr. Crawford guilty of assault. (48)

    Although the evidence was clearly admissible under the state rules, Mr. Crawford's objection was based on a constitutional right: "to be 'confronted with the witnesses against him.'" (49) The Supreme Court had previously grappled with this precise claim, and so the trial court applied the Supreme Court's rule from Ohio v. Roberts. (50) There, the Court had held that:

    [W]hen a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate "indicia of reliability." Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. (51) Applying this rule to the case at bar, the trial court found Mrs. Crawford's statements to the police admissible since the statements possessed the requisite indicia of reliability. (52) The Washington Court of Appeals reversed, finding the statements insufficiently reliable. (53) In turn, the Washington Supreme Court reinstated the trial court's conviction, finding the statements sufficiently reliable. (54)

    Crucially, the reasoning in the state courts consistently relied on the Supreme Court's holding in Roberts, even though the courts reached different conclusions. (55) All along, it was assumed that reliability was the key consideration, as the Court held in Roberts. (56) At first glance, this seems beside the point: the Confrontation Clause guarantee does not contain an exception for reliable evidence. (57) It is worth noting, then, why the Supreme Court had reached this conclusion in Roberts. As the Court explained, "a primary interest secured by [the provision] is the right of cross-examination." (58) Cross-examination is valuable because it secures the "integrity of the fact-finding process." (59) As a result, the Court in Roberts held that where other evidence of reliability is present, the confrontation requirement could be set aside as superfluous. (60) Such, at least, was the situation heading into the Court's consideration of Crawford.

    In Crawford, however, the Supreme Court did not further refine the indicia of reliability test, or even offer a different test. Instead, the Court set aside its Roberts jurisprudence. (61) While acknowledging that, under the Roberts test, the evidence against Mr. Crawford was admissible, (62) the Court nonetheless held that admitting the evidence would violate the Confrontation Clause. (63) In a unanimous judgment, (64) and an opinion authored by Justice Scalia, the Court held that certain sorts of hearsay evidence violated the Confrontation Clause when admitted against criminal defendants, even though admissible under the applicable rules of evidence. (65) In the jurisprudence announced in Crawford, the distinction between admissible and inadmissible evidence in criminal cases, turned not on reliability, but on the precise contours of the Sixth Amendment guarantee. (66) Therefore, under the reasoning in Crawford, the Court turned away from the Roberts Court's goal-oriented balancing of "competing interests," (67) and endorsed a formalist view of confrontation. (68)

    In setting out this new doctrine, the Court provided only a rough sketch of the outer limits of the confrontation guarantee. Certainly, the doctrine would not bar all hearsay evidence. (69) The Confrontation Clause guarantees the accused the right "to be confronted with the witnesses against him." (70) Much turns, then, on the meaning of "witness." One could imagine a definition under which the Confrontation Clause would be trivial in this context: if a "witness" is simply a person testifying at trial in the current action, all that would be promised would be the right of cross-examination. (71) To discern the precise meaning of "witness," Scalia employed his wellknown "original public meaning" originalism. (72) After a historical analysis, (73)...

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