The stars are aligned today for the overruling of Crawford v. Washington. (1) Although Justice Scalia's opinion in that Confrontation Clause case omitted analysis of most of the recognized factors justifying its sharp departure from stare decisis, (2) by now those factors have developed in a way that justifies departure from Crawford itself. (3) For example, even commentators who support the apparent goal of that decision, namely, broad exclusion of evidence on Confrontation Clause grounds, describe Crawford and its progeny as unstable. (4) The underpinnings of the decision are dubious and, in some instances, provably wrong.5 Crawford has led to a series of decisions by closely divided Courts (6) that have left important issues heavily discussed but unresolved. (7) To reach decisions that make sense after Crawford, the Justices have resorted to transparent judicial fudging. (8) In summary, the Crawford approach is neither faithful to the Constitution nor workable. And by now, remarkably, a majority of the Court is united in rejecting that approach (9) and preferring differing alternatives that easily could be reconciled and that would produce results more congruent with the purposes of the Confrontation Clause. (10)
The regime that preceded Crawford did not feature the kind of indeterminacy that has followed that decision. The principal earlier decision, Ohio v. Roberts, (11) was imperfect, to be sure, but contrary to statements in Crawford, its rationale was traceable to the history of the Confrontation Clause. (12) Decisions made under its approach did not require judicial legerdemain to come to reasonable conclusions. (13) Furthermore, Crawford ignores the justifications recognized by the Court for departure from stare decisis, in this instance by its jettisoning of Roberts, (14) and overruling Crawford would replace that decision with satisfactory doctrine even if the Court failed to update Roberts. (15)
Articles discussing Crawford are numerous, as might be expected. They are generally uncomplimentary, (16) featuring descriptions ranging from "unstable" (17) to "unspeakable." (18) Few of them, however, discuss whether Crawford should be overruled, (19) and none analyzes this question in light of the Court's doctrine that governs departures from stare decisis. That is the ultimate purpose of this Article. The reason for this void in the scholarship may be the recent rendition of Supreme Court decisions that most persuasively demonstrate the need for rejecting Crawford. (20) In other words, although Crawford itself has been around for some time and has been the subject of several analyses, it is only recently that this Article can be written in convincing terms, and its subject is new.
The Article begins with descriptions of Roberts and Crawford, the two opposing decisions considering the Confrontation Clause. It then analyzes the manner in which the Crawford Court overruled Roberts and compares the Court's reasoning to criteria it has developed for departures from stare decisis. Next, the Article considers defects in the Crawford decision, with particular attention to errors in its rationale, later decisions attempting to follow it, issues that have remained unresolved, and the practical effects that have resulted. The sixth section of the Article discusses Williams v. Illinois, in which a coalition formed to reject the Crawford rationale--and in which the Court arguably has overruled that decision by implication. A final section sets out the author's conclusions, which include the propositions that the overruling of Roberts was not justified by the reasoning in Crawford, but that the overruling of Crawford is amply justified by criteria expressed in the Court's stare decisis decisions.
THE CONFRONTATION CLAUSE, OHIO V. ROBERTS, AND CRAWFORD V. WASHINGTON
The Sixth Amendment to the Constitution provides that in criminal prosecutions, the accused shall enjoy the right "to be confronted with the witnesses against him." (21) The Court has interpreted this clause as providing various guarantees to the criminal defendant, including the right of "vigorous cross-examination," (22) the right to face-to-face presentation of witnesses, (23) and the right to severance if a codefendant's confession is to be introduced before the jury. (24) Probably the most expansive application of the Confrontation Clause, however, is its use to exclude some kinds of hearsay. The hearsay rule and the Confrontation Clause are said to embody overlapping principles that spring from similar concerns, although it is well established that the two are not coterminous. In other words, some evidence that would be admitted under the hearsay rule may be excluded by the Confrontation Clause, and some that would be admitted under the Confrontation Clause may be excluded by the hearsay rule, but they have intertwined purposes and jurisprudence. (25)
Before 2004, the Court interpreted the Confrontation Clause as a guarantee that hearsay evidence would meet criteria tending to show reliability. The leading case was Ohio v. Roberts, (26) which excluded unconfronted hearsay unless it was supported by indicia of reliability. Roberts also held that evidence admitted under a "firmly rooted" hearsay exception was considered to exhibit these indicia. (27) Roberts was part of a long chain of reliability-based decisions that excluded evidence from preliminary hearings unless the declarant was unavailable, (28) disapproved newly minted hearsay exceptions that did not depend upon sufficient indications of reliability, (29) and outlawed codefendants' confessions under some conditions, (30) among other kinds of evidence. On the other hand, the reliable-and-firmly-rooted approach resulted in the reception of evidence such as excited utterances and statements during medical examinations: evidence conforming to established hearsay exceptions. (31)
Then came Crawford v. Washington, which rejected the long line of decisions that included Ohio v. Roberts. (32) Reliability, which had been the touchstone of hearsay admissibility, suddenly was irrelevant. The Confrontation Clause, wrote Justice Scalia for the Court, "is a procedural rather than a substantive guarantee." (33) It "commands," he said, "not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination." (34) The Confrontation Clause is a guarantee about "witnesses," and Justice Scalia therefore needed to define "witnesses." He asserted that witnesses provide "testimony," which in turn, he inferred, meant statements repeated by witnesses at trial. (35) But it meant only some kinds of statements, namely, those that provide "testimony." (36) An out-of-court statement that was not testimonial could be repeated by a witness without violating the Confrontation Clause, no matter how unreliable it might be. (37) The Court failed to provide a definition of the key word, "testimonial," but it referred to the resulting quantity, "testimony," as "typically a solemn declaration or affirmation made for the purpose of establishing ... some fact." (38)
In reaching these conclusions, Justice Scalia purported to rely on textual, historical, and prudential justifications. (39) The reasoning in Crawford supporting these rationales, however, is dubious and in some particulars simply wrong. (40) Furthermore, although the Court has protected the principle of stare decisis with the requirement that the overruling of an existing decision meet certain specified criteria, Justice Scalia failed to analyze any of those criteria. The next section of this article will consider this aspect of the Crawford decision.
COMPARING CRAWFORD TO THE SUPREME COURT'S REQUIREMENT FOR DEPARTURE FROM STARE DECISIS
Criteria for Overruling Earlier Decisions: Can Crawford's Departure from Stare Decisis Be Justified?
In such decisions as Payne v. Tennessee (41) and Planned Parenthood v. Casey, (42) the Supreme Court has attempted to protect the principle of stare decisis while at the same time allowing for the overruling of bad decisions. Without this protection, stability of decisions would be difficult to maintain, and arguably the ultimate result would be destruction of the judicial function. (43) An excessive protection, however, would enshrine demonstrably erroneous decisions in an impregnable fortress forever, so that Brown v. Board of Education (44) could never overturn the separate-but-equal principle of Plessy v. Ferguson. (45) The Court's criteria for departure from stare decisis are malleable, as are most judicial doctrines, and they result in different statements by different Justices. Nevertheless, Justice Scalia's omission even to consider these criteria in Crawford is an unfortunate aspect of the decision.
Payne v. Tennessee is one of the cases that sets out the criteria. There, the Court overruled its earlier decisions in Booth v. Maryland (46) and South Carolina v. Gathers. (47) Those cases had produced an odd doctrine: that the result of the crime--the harm done--was irrelevant to a convicted perpetrator's sentence. (48) Specifically, Booth and Gathers had held, contrary to reason, history, and policy, (49) that the impact of the crime upon the victim was not a proper consideration in the fashioning of the sentence. The Court posited that a criminal defendant must be treated as a "uniquely individual human bein[g]," (50) which by itself was an unremarkable observation, although its connection to the result was distant. The next step in the reasoning, one that exhibited little in the way of logic, was that the only proper considerations in sentencing were "the character of the individual and the circumstances of the crime." (51) The word "circumstances" might seem to have suggested that the harm done to the victim was a proper element, but again, the Court's logic was more scattered than that. To the extent that victim impact evidence presented...