Crawford's aftershock: aligning the regulation of nontestimonial hearsay with the history and purposes of the confrontation clause.

Author:Smith, Fred O., Jr.

INTRODUCTION I. THE CASE FOR LIMITING THE CONFRONTATION CLAUSE TO TESTIMONIAL STATEMENTS, AND WHY IT IS WRONG A. Taking a Historical and Purposive Look at the Confrontation Clause B. The Tale of the Inconclusive Text C. Fulfilling the Primary and Secondary Goals of the Confrontation Clause II. NONTESTIMONIAL STATEMENTS: HOW MUCH "CONFRONTATION" IS ENOUGH? A. The Unreliability of the Roberts Reliability Test 1. Corroborating evidence 2. Child hearsay in abuse cases B. And Besides, Roberts Misses Much of the Point of Confrontation 1. Confrontation: what's the point? 2. Roberts's incomplete focus--treating sincerity as sufficient III. THE CLAUSE'S PERIMETER: LOOKING FORWARD A. Proposals One and Two: Immediate Admission of Impeachment Materials B. Proposal Three: Bringing Out the Best of Roberts C. Confrontation as Argument CONCLUDING THOUGHTS INTRODUCTION

Courts have called the decision a "bombshell," a "renaissance," and the dawning of a "new day" in the Sixth Amendment's Confrontation Clause jurisprudence. (1) News reports have called the decision "an earthquake rocking America's criminal justice foundations." (2) Four years ago, in Crawford v. Washington, (3) the United States Supreme Court revisited the scope and purposes of the constitutional guarantee that a criminal defendant shall "be confronted with the witnesses against him." (4) The case and its progeny (5) redefined this clause's implications for hearsay statements. (6)

Before Crawford, under Ohio v. Roberts, (7) the Confrontation Clause barred prosecutors from introducing hearsay statements against a criminal defendant unless the statements met one of two prerequisites. The statement had to either fall into a "firmly rooted hearsay exception" or bear "particularized guarantees of trustworthiness." (8) Yet, in Crawford, the Court found the Roberts test problematic, at least in the context of what it called "testimonial statements." (9) Without providing a precise definition of this term, the Court concluded that "testimonial" hearsay statements are admissible only if the witness is "unavailable to testify, and the defendant [has] had a prior opportunity for cross-examination." (10)

Commentary on the Confrontation Clause exploded after the Crawford decision--mostly exploring the precise definition of "testimonial." (11) This narrow question has also been the focus of Confrontation Clause cases that the Supreme Court has decided post-Crawford. (12) Still, while the definition of "testimonial" is a rich issue, surprisingly little was written in the immediate aftermath of Crawford about a related question: should the Confrontation Clause now leave nontestimonial statements unregulated altogether? (13)

For roughly a two-year period, courts continued to apply the old Roberts test to nontestimonial statements consistently, (14) though not unflinchingly. Some noted that many of the problems that plagued the reliability test in the context of testimonial statements continued to haunt with equal force when courts assessed whether nontestimonial statements ought to be admitted into evidenee. (15) And in some eases, courts' intuitions that the Roberts test would ultimately be revisited in the context of nontestimonial statements were palpable. (16)

These lower courts' intuitions proved correct. While the Supreme Court stated in Crawford that "even if the Sixth Amendment is not solely concerned with testimonial hearsay, that is its primary object," (17) the Court went further two years later in Davis v. Washington. There, the Court concluded that "testimonial" statements not only mark the Confrontation Clause's '"core,' but its perimeter." (18) A few courts, even after Davis, continued to apply Roberts to nontestimonial hearsay statements. (19) But in 2007, the Supreme Court issued an even more direct and unambiguous declaration on the subject in Whorton v. Bockting, concluding that "the Confrontation Clause has no application" to "out-of-court nontestimonial statements." (20)

After Davis and Bockting, it is now permissible to enter nontestimonial statements into evidence against a criminal defendant without any Confrontation Clause restrictions whatsoever. (21) In light of that recent shift, this Note explores what the purposes, history, and text of the Confrontation Clause have to say about the admission of nontestimonial hearsay statements.

Part I examines historical sources, such as the common law, near the Founding, as well as the text of the Confrontation Clause and concludes that nontestimonial hearsay was one of the ills that the clause was designed to protect against. Part I additionally proposes a two-tiered approach to interpreting the Confrontation Clause, in which testimonial statements receive the most vigorous form of constitutional scrutiny, but nontestimonial statements receive meaningful scrutiny as well. The United States Constitution is no stranger to such a two-tiered approach to implementing its amendments. (22)

Part II more carefully explores what "confrontation" should mean, both historically and practically, in the context of nontestimonial hearsay. After marshaling relevant case law, historical texts, jury instructions and practitioners' guides, Part II concludes that simply reimplementing Roberts would not adequately or faithfully result in the type of meaningful confrontation demanded by the clause. Part III then proposes four interpretive reforms that would bring American courts closer to harmonizing the Confrontation Clause's regulation with the provision's full range of historical and practical values.


    1. Taking a Historical and Purposive Look at the Confrontation Clause

      The term "testimonial" is not yet a term of precision; the Crawford Court left "for another day any effort to spell out a comprehensive definition" of the word. (23) Still, there are some types of statements that courts routinely agree are not testimonial, including conversations between relatives and friends in which neither party has reason to suspect the statements will be repeated in a legal or investigative setting. (24) Yet, there are cases reported at or around the Founding in which common law courts rejected such nontestimonial statements as inadmissible.

      One critical case on point is King v. Brasier. (25) Decided less than a decade before the ratification of the U.S. Constitution, this British appellate decision has proved enduring; it was even cited by a Crawford concurring opinion as an example of the type of case that was likely on the Framers' minds at the time they crafted the Confrontation Clause. (26)

      In King v. Brasier, a child victim of assault and attempted rape "immediately" informed her mother of "all the circumstances of the injury which had been done to her." (27) The court noted that no circumstances could confirm the victim's story, except that the defendant had lodged at the same place the victim described. (28) While the girl did not testify at trial, her statements came in through her mother's testimony. The court concluded that this method of admission was improper--and indeed the fact that the statements were of a nature that the Crawford regime terms "nontestimonial" made the statements less credible, not more so. (29) The court expressed unanimous concern that the victim's statements were not made under oath; therefore, these statements "ought not have been received." (30) Also of note is that the court referred to the victim's statements as "testimony," stating that "no testimony whatever can be legally received except upon oath." (31) This adds credence to the idea that any statement presented to a jury for the truth of the matter asserted (32) constructively becomes "testimony," and the declarant becomes a witness.

      One could attempt to dismiss Brasier as a hearsay case rather than a case properly viewed as a precursor to the Confrontation Clause. But in the four times this case has been cited in American jurisprudence, three courts have cited it for its bearing on their Confrontation Clause interpretations while one cited it as useful in determining whether a child was competent to take the stand. (33) None have cited it merely for its hearsay implications. Thus, one arguing that this is a hearsay rather than a Confrontation Clause case bears the burden to demonstrate why almost every American appellate jurist to have reviewed Brasier has been wrong about its implications.

      Alternatively, some scholars, including Jeffrey L. Fisher, argue that Brasier stands as evidence that courts should adopt a broader conception of what constitutes testimonial evidence. (34) Fisher proposes that when a person provides a play-by-play description of a completed event to a person in a position of authority, a court should characterize this statement as testimonial. Accusations from children, reporting abuse to parents, typify this principle. "While parents are not governmental actors, they are people of authority in their children's eyes--the people to complain to when something is wrong and needs to be fixed." (35)

      Fisher's proposal, and his reading of Brasier, are thought-provoking. And because he argued Crawford, his proposal deserves particular attention. The Crawford Court certainly left open the possibility that in future cases, it might be receptive to broader definitions of "testimonial," (36) noting that it need not decide that question since the police interrogation at issue was testimonial under even a narrow understanding. Fisher's proposal above supplies one example of such a broader definition. (37)

      Still, the notion that statements to friends and relatives can qualify as testimonial has generally been rejected by courts, (38) with few exceptions. (39) And understandably so, for this interpretation of "testimonial" deviates from some of the most basic principles animating Crawford. The majority opinion expressed particular concern about the risks attached...

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