Crawford v. Washington: a critique.

AuthorMendez, Miguel A.

INTRODUCTION I. THE GOALS OF CROSS-EXAMINERS II. THE TWO-PART TEST A. Hearsay and Confrontation B. Confrontation and Single Defendants III. CRAWFORD'S IMPACT A. A New Test B. Crawford's Impact on Single Defendants C. Crawford's Impact on Multiple Defendants IV. UNANSWERED QUESTIONS REGARDING TESTIMONIAL STATEMENTS A. Definitional Uncertainties B. The Unavailability Requirement C. The Adequacy of the Opportunity to Cross-Examine the Declarant V. NONTESTIMONIAL STATEMENTS AND CONFRONTATION A. Business Records B. Coconspirators' Declarations C. Declarations Against Interest VI. EMERGING HEARSAY EXCEPTIONS: STATEMENTS BY CRIME VICTIMS VII. REGULATING NONTESTIMONIAL STATEMENTS--OPTIONS INTRODUCTION

Understanding the use of the Confrontation Clause in criminal trials requires appreciating the role of the jurors. Their role is to reconstruct a historical event from the evidence presented by the parties. The jurors have been called upon to participate in the trial because the parties disagree about what happened. The purpose of the trial is to afford each side an opportunity to persuade the jurors to accept its version of what occurred. The jurors' reconstruction of what happened will determine whether the accused is held accountable or is exonerated.

Three aspects of American jury trials are especially pertinent in understanding the role of the jurors. First, how a trial unfolds depends on the initiative of the parties. It is the parties who will decide which witnesses to call, the order in which to call them, the questions that the witnesses will be asked to answer, and which nontestimonial evidence will be offered. (1) The second aspect is related to the adversarial nature of jury trials. Each side can be depended upon to produce the most helpful information available to reconstruct its version of the past event. (2)

Finally, the rules of evidence play a crucial part in shaping what parties can and cannot do. The rules place limits or an outright ban on the information the parties may seek to place before the jurors. The rules, for example, ban irrelevant evidence, exclude some relevant evidence in order to promote other policies (e.g., protect privileged information), ban evidence the legislature deems unduly prejudicial (e.g., character evidence), and place limits on what parties can do to support the credibility of their witnesses and to attack the credibility of their opponent's. The rules also restrict the use of evidence the legislature considers unreliable. Hearsay is the classic example.

While the rules do seek to exclude unreliable evidence, they cannot guarantee that all evidence presented to the jurors will be reliable. Witnesses sometimes lie: at other times, they might be mistaken. What the rules can and should do is give the parties an opportunity to present the jurors with reasons why they should not rely on the other side's evidence. In the case of testimony, the parties are given a powerful tool: the right to cross-examine adverse witnesses under oath in the presence of the jurors. (3)

An American jury trial, then, is predicated on the assumption that jurors are most likely to reconstruct a past event accurately if the parties are given an opportunity to demonstrate to the jurors why the evidence presented by the other side should be rejected. Since cross-examination of witnesses is essential in exposing flaws in the testimony given on direct examination, confidence in the accuracy of a jury verdict is necessarily undermined whenever a party is deprived of the opportunity to cross-examine the adversary's witnesses under oath in the presence of the jurors.

This insight has serious implications in criminal trials. Although the right of criminal defendants to confront their accusers can and does have more than one goal, from an instrumental perspective it must mean that the accused should be accorded an opportunity to cross-examine his accusers under oath in the presence of the jurors. That, however, may not always be possible. For example, the person accusing the defendant might be dead, and unless his deathbed statement identifying the accused as his killer is admitted at the trial, the accused might go free. Framers of the rules of evidence, whether legislators or judges, have struggled with this and similar problems, and arrived at different compromises reflected in the exceptions to the hearsay rule. But in doing so, state legislators and judges, in whose courts most criminal trials take place, were free to consider the issues without federal constitutional constraints.

That, however, changed in 1965 when in Pointer v. Texas the U.S. Supreme Court held that the Sixth Amendment's right of confrontation applies to state criminal trials as well as federal ones. (4) Since that time, the Court has tried to define the circumstances under which statements can be offered by the prosecution against the accused without having to accord the accused an opportunity to cross-examine the declarant. Eventually, the Court developed a two-part test: (1) if the statement offered against the defendant fell within a "firmly rooted" exception to the hearsay rule, cross-examination could be done away with; (2) but if the statement did not fall into such an exception, then cross-examination could be dispensed with only if the prosecution convinced the judge that the statement offered was reliable. (5)

In Crawford v. Washington, (6) the Court abandoned the two-part test, at least when the statement offered against the defendant qualifies as a "testimonial statement." (7) When it does, then the prosecution must either produce the declarant for cross-examination at the trial or demonstrate the declarant's unavailability to appear as a witness and show that the accused had an opportunity prior to the trial to cross-examine the declarant about the statement offered at the trial. (8) The Court, however, declined to rule on whether nontestimonial statements remain subject to confrontation scrutiny. (9)

The major purpose of this Essay is to assess Crawford's efficacy in guaranteeing criminal defendants the right to test the reliability of the prosecution's witnesses' testimony through cross-examination under oath in the presence of the jurors. Part I describes the goals of cross-examiners and shows how the hearsay rule gives substance to the right of cross-examination by banning the use of out-of-court statements when offered to prove the matters asserted by the declarant. Part II traces the Court's development of the two-part confrontation test and the test's rejection in Crawford in the case of testimonial statements. Part III examines the impact of Crawford on the Court's leading confrontation cases. Part IV discusses important questions which Crawford leaves unanswered when the statements offered might qualify as testimonial. Part V identifies some nontestimonial statements which from a defense perspective ought to be tested through cross-examination. It also asks whether the Court should nonetheless regulate them under the Confrontation Clause and, if so, whether in view of Crawford any test remains that the Court could or should employ in scrutinizing these statements. Part VI focuses on emerging hearsay exceptions for statements by crime victims and examines their status under Crawford. A final Part explores options the Court could use if it chooses to regulate nontestimonial statements under the Confrontation Clause.

  1. THE GOALS OF CROSS-EXAMINERS

    Assume that a defendant is prosecuted for reckless driving on the theory that he injured the victim, another driver, when he ran a red light and struck her car. The victim testifies that, as she entered the intersection, the light facing her was green and that moments later the defendant's car struck her on the driver's side. The victim calls a motorist who testifies that he and his spouse were parked at the intersection facing the defendant and that at the time of the collision the spouse told him that the light facing them was red.

    The victim's testimony alone would make out a prima facie case and allow the state to get to the jury' on the issue of whether the defendant committed the offense. With the motorist's testimony, the state's chances of persuading the jury to return a guilty verdict are enhanced significantly. But if the defendant contradicts the victim's testimony ("I had the green light.") and precludes the motorist from testifying, the outcome is cast into doubt. Indeed, if under these circumstances the jurors cannot decide whether to believe the victim or the defendant, they would be bound to acquit the defendant since the state has the burden of proving each element of the offense beyond a reasonable doubt. (10) To the defendant, then, preventing the motorist from testifying is crucial.

    Over a hearsay objection, should the motorist be allowed to testify that his spouse told him that the light facing them was red? The answer is no if the evidence is being offered to establish the color of the light facing them. In the words of the Federal Rules of Evidence, the motorist's testimony is hearsay because it consists of a "statement, other than one made by the declarant while testifying at the trial or hearing" (i.e., what the spouse told the motorist about the color of the light prior to the trial) "offered in evidence to prove the truth of the matter asserted" (i.e.. that the color of the light facing the motorist and his spouse was red shortly before the collision). (11)

    Why should the hearsay rule disfavor the use of the spouse's statement? One reason is that receiving hearsay through a witness other than the declarant deprives the party opposing the hearsay from cross-examining the declarant. Cross-examiners generally have one of two goals: (1) to persuade a witness to recant the testimony given on direct and, instead, affirm the cross-examiner's theory of the case, or (2) failing that, to discredit the witness's account on direct by impeaching...

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