Justice Scalia and the Confrontation Clause: a case study in originalist adjudication of individual rights.

AuthorMurphy, Cornelius M.
  1. Introduction

    Broadly speaking, there are two competing schools of constitutional interpretation: originalism and nonoriginalism.(1) Much of the debate between these theories centers on the adjudication of individual liberties under the due process clause of the Fourteenth Amendment,(2) but the two camps are just as divided in determining the proper scope of the individual rights accorded to criminal defendants.

    Justice Antonin Scalia is generally regarded as the ardent originalist member of the Supremp Court.(3). This Note will examine his approach to the Confrontation Clause of the Sixth Amendment in comparison with the approach of the other members of the Court in order to assess the merits of originalism and nonoriginalism. Part II will trace the Court's Confrontation Clause cases, highlighting the distinction between the originalist methods utilized by Justice Scalia and the nonoriginalist approaches used by other Justices. Part III will argue that, as exemplified by Scalia's Confrontation Clause jurisprudence, originalism is the best available method for adjudicating constitutional rights -- criminal or otherwise -- under a democratic system of government. Part IV will briefly address some critiques of originalism.

  2. The Confrontation Clause

    The Confrontation Clause of the Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witness against him."(4) The language of the clause "comes to us on faded parchment,"(5) and its history is unclear.(6) Nevertheless, the Court has identified various interests that animate the provision. In Mattox v. United States,(7) the earliest case to interpret the Confrontation Clause, the Court stated that the clause's function was to prohibit the use of depositions or ex parte affidavits, which were admissible in civil cases, to convict criminal defendants.(8) More generally, the provision has been construed as a safeguard to ensure the reliability of evidence presented at a criminal trial by subjecting it to adversarial testing. Thus, we clause

    (1) insures that the witness will give his statements under oath -- thus impressing

    him with the seriousness of the matter and guarding against the lie by the

    possibility of a penalty for perjury; (2) forces the witness to submit to

    cross-examination, the greatest legal engine ever invented for the discovery of

    truth'; [and] (3) permits the jury that is to decide the defendant's fate to observe

    the demeanor of the witness in making his statement, thus aiding the jury in

    assessing his credibility.(9)

    Against this backdrop, the Court has been called upon to reconcile the mandates of the Confrontation Clause with competing interests in three lines of cases where a criminal defendant has claimed that his right to confrontation has been abridged The first set of cases involves the interplay of the requirements of the Confrontation Clause and the evidence rules governing hearsay. A second line of cases presents the confrontation consequences of the testimony of the forgetful witness -- a witness who, because of memory loss, has no recollection of an essential basis for his testimony. The third area of cases involves the special concerns raised by the testimony of child sex abuse victims.

    As with other constitutional cases, Justice Scalia utilizes an methodology to adjudicate confrontation rights accorded to criminal defendants. This approach produces a unique set of results and places Scalia alone among the members of the Court in his view of the Confrontation Clause. More importantly, Scalia's analysis of the Confrontation Clause illustrates why originalism, which shuns the legal indeterminacy and result-oriented decisions associated with non-originalist approaches, stands as the only legitimate method of constitutional interpretation consistent with our democratic system of government.

    1. Hearsay and the Confrontation Clause

      The hearsay rule and its numerous exceptions we among the most complex and arcane rules known to the law.(10) One source of confusion stems from the overlap of the evidence rules governing hearsay and the requirements of the Confrontation Clause. On the one hand, the clause could be read to mean that no hearsay may be admitted against an accused unless the declarant confronts the defendant at trial. On the other hand, the clause could mean that an accused retains the right to confront only those witnesses who actually testify at trial, so that the admission of hearsay has no confrontation consequences.

      Neither of these polarized approaches has been accepted by the Court. Instead, the Court has tried to "steer a middle course . . . that recognizes that hearsay rules and the Confrontation Clause are designed to protect similar values."(11) In Ohio v. Roberts,(12) the Court set forth the general rule for determining whether a statement that is admissible under hearsay rules also satisfies the mandates of the Confrontation Clause:

      [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. In other cases, the evidence must be

      excluded, at least absent a showing of particularized guarantees of

      trustworthiness.(13)

      Applying this test to the facts in Roberts, the Court held that the admission at trial of an unavailable witness's preliminary hearing testimony did not violate the Confrontation Clause.(14)

      Subsequent cases have fleshed out the Roberts rule. If evidence is admitted pursuant to "firmly rooted" exceptions to hearsay, the Constitution does not always require a showing of unavailability. For example, in United States v. Inadi,(15) the Court dispensed with the showing of unavailability as a prerequisite to the admission of a declarant's statements under the co-conspirator exception(16) to the hearsay rule. Later, in United States v. Bourjaily,(17) the Court held that statements admitted pursuant to the co-conspirator exception are "firmly rooted" hearsay exceptions under the Roberts rule. Similarly, in White v. Illinois,(18) the Court held that spontaneous declarations(19) and statements made for the purposes of medical diagnosis(20) also are "firmly rooted" hearsay exceptions, and the Court further held that a showing of unavailability is not a precondition for admissibility. In Idaho v. Wright,(21) however, the Court found that hearsay admitted pursuant to a "catch-all" exception(22) lacked sufficient reliability to meet the constitutional standards for admissibility. Nevertheless, it remains unclear what other hearsay exceptions are "firmly rooted" for Confrontation Clause purposes and what exceptions do not require a showing of unavailability as a prerequisite for admissibility.(23)

      Justice Clarence Thomas articulates Justice Scalia's view on this issue in his concurring opinion in White v. Ilinois.(24) The linchpin of the analysis is a proper understanding of the phrase "witnesses against him" in the Confrontation Clause.(25) Beginning with Roberts, the Court has reasoned that the phrase encompasses hearsay declarants, "an assumption that is neither warranted nor supported by the history or the text of the clause."(26) It is this erroneous reading that has forced the Court to promulgate a series of unworkable rules governing hearsay and confrontation.(27) In short, according to Scalia and Thomas," [t]he standards that the Court has developed to implement its assumption that the Confrontation Clause limits admission of hearsay evidence have no basis in the text of the Sixth Amendment.(28)

      Thomas and Scalia suggest that the correct reading of the clause construes a "witness" simply as one who testifies at trial;(29) accordingly, it is only those witnesses that an accused has the right to confront. Dean Wigmore(30) and Justice Harlan(31) shared this view. As Professor Akhil Amar has stated the matter,

      [t]he place to begin is the text -- in particular, the word "witness." Hasn't the

      Court wrongly conflated the word "witness" in the Confrontation Clause with

      the somewhat different idea of "an out-of-court declarant" -- or, more,

      elaborately still, "an out-of-court" declarant whose utterance is introduced for the

      truth of the matter asserted" -- the hearsay rule? In ordinary language,

      when witness A takes the stand and testifies about what her best friend B told

      her out of court, A is the witness, not B. Imagine, for example, that B were later

      asked whether she had ever before been a witness in a criminal prosecution.

      Surely B could say no; indeed, she may not even know that witness A

      paraphrased her words on the stand.(32)

      Scalia and Thomas recognize, however, that this reading of the clause, taken to its logical conclusion, would admit some types of hearsay in a manner inconsistent with the purposes behind the Confrontation Clause.(33) To resolve this problem, they offer a simplified rule:

      The federal constitutional right of confrontation extends to any witness who

      actually testifies at trial, but the Confrontation Clause is implicated by

      extrajudicial statements only insofar as they are contained in formalized

      testimonial materials, such as affidavits, depositions, prior testimony, or

      confessions.(34)

      This reading of the Confrontation Clause squares perfectly with its text while preventing the clause from being "construed to extend beyond the historical evil to which it was directed.(35) The Court has repeatedly recognized that the clause was designed to avoid procedural unfairness, such as "trial[s] by affidavit" and convictions secured through "flagrant abuses[,] . . . anonymous accusers, and absentee witnesses."(36) The evidence from concerns for reliability and trustworthiness-interests that are not directly implicated by the...

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