Massachusetts paves the way: a comparison between the confrontation right guaranteed by the United States and Massachusetts Constitutions in light of Crawford v. Washington.

AuthorBrown, Elizabeth O.

"There are few subjects, perhaps, upon which [the Supreme] Court and other courts have been more nearly unanimous than in their expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal." (1)

  1. INTRODUCTION

    On November 17, 1603, at the conclusion of Sir Walter Raleigh's now famous trial, a jury found Raleigh guilty of treason. (2) Historical observers have recognized the unfairness of the entire proceeding, but it was the denial of Raleigh's request to face his lone accuser that arguably brought the trial its notoriety. (3) The prosecution based its case almost entirely upon the assertions of Raleigh's alleged accomplice, Lord Cobham, who never testified at the trial. (4) Raleigh argued that Cobham lied in order to clear his own name and pleaded with the court to allow him to face his accuser: "[t]he Proof of the Common Law is by witness and jury: let Cobham be here, let him speak it. Call my accuser before my face...." (5) The court refused his request and held that it would not consider the issue of confrontation in a case of treason against the King. (6) Ultimately, the jury found Raleigh guilty and sentenced him to death. (7)

    The Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him...." (8) Through the years, the Supreme Court has noted that the Confrontation Clause serves several different purposes. (9) Undoubtedly, its most important purpose is that which guarantees an accused the right to cross-examine adverse witnesses in a criminal proceeding. (10) The Court affirmed this in Crawford v. Washington (11) by holding that testimonial statements admitted under a hearsay exception violate the accused's confrontation rights unless the declarant is unavailable and the accused had a prior opportunity to cross-examine the declarant. (12)

    The Court decided Crawford after a series of cases in the previous half century emphasized the public policy benefit of admitting reliable hearsay evidence in criminal proceedings. (13) As a result of these decisions, the Court substantially constrained the Constitutional guarantee of confrontation. (14) Crawford effectively overruled Ohio v. Roberts, (15) which for twenty years provided that the test for determining if a court violated a defendant's confrontation right was whether a statement bears "particularized guarantees of trustworthiness." (16) The Court established that the new rule for determining confrontation violations is whether an out-of-court statement is testimonial. (17) The Court reasoned that its holding more accurately reflects the Framers' original understanding of the Confrontation Clause. (18) Legal scholars, however, have criticized Crawford because the Court refused to define a testimonial statement. (19)

    This Note will begin with a discussion of the history of the confrontation right from its origins in England, through its development in colonial America, to the role it played in early Supreme Court decisions. (20) This Note will then detail the series of cases throughout the past half century that narrowed the right to confrontation based on the belief that courts should balance the confrontation right with the need for reliable hearsay evidence at trial. (21) This Note will then outline the history of the confrontation right in Massachusetts prior to Crawford. (22) It will then discuss how Crawford has both changed and added to the right to confrontation in Massachusetts and analyze the decision's effect on Massachusetts case law. (23) This Note will conclude by comparing the confrontation right the United States Constitution guarantees with the right the Massachusetts Constitution guarantees, particularly in light of Crawford. (24)

  2. HISTORY

    1. Confrontation: Its Origins in the United States of America

      Although the right to confront one's accuser originated in Roman times, its inclusion in the Constitution sprung from the English common-law tradition. (25) The common-law right to confrontation emerged in reaction to the civil law practice of judicial magistrates examining witnesses before trial and reading their depositions or affidavits in lieu of live testimony. (26) The English government used these civil law practices during the trial of Sir Walter Raleigh, which some scholars say directly led to the inclusion of the right to confrontation in the United States Constitution. (27) Regardless of the role Raleigh's trial played, however, the Framers made it clear that they would not allow these civil law abuses to continue in their newly formed nation. (28)

      Confrontation of one's accuser was particularly important to the American colonists who had experienced firsthand the injustices that resulted from its denial during the series of events leading up to the Revolution, specifically the Crown's attempts to enforce the 1763 Sugar Act and the 1765 Stamp Act. (29) When the colonists resisted the enforcement of these laws, the Crown granted jurisdiction to the admiralty courts. (30) Admiralty courts not only sat without juries, they also examined witnesses in chambers and used their depositions as testimony in proceedings against violators, thereby depriving the accused of the right to confront those witnesses. (31)

      As a result of the injustices at the hands of the admiralty courts, the Framers understood the importance of adopting a criminal system that would protect individuals from government abuses. (32) The proposed Constitution of the United States, however, did not include a right to confrontation. (33) As a result of the omission of confrontation and other individual rights, the states delayed ratification of the Constitution, which may have derailed the nascent constitution without the Framers' promise to adopt a bill of rights. (34) The Framers kept their promise, and in 1791, the states ratified the first ten amendments to the United States, known collectively as the Bill of Rights. (35) The Bill of Rights included, inter alia, the right for an accused to confront adverse witnesses in a criminal proceeding. (36)

    2. The United States Supreme Court's Early Interpretations of the Confrontation Clause

      1. The Supreme Court's First Major Confrontation Clause Decision: Mattox v. United States

        The Court's first major Confrontation Clause case involved a retrial where two witnesses who testified at the first trial had since died. (37) During the retrial, the judge allowed the prosecution to read the witnesses' testimonies from the previous trial as transcribed by the court reporter. (38) The defendant, Mattox, objected to the admission of this testimony, however, arguing that it denied him his right to confront the witnesses. (39)

        The Supreme Court disagreed and upheld the conviction, concluding that because Mattox had previously cross-examined the two witnesses, his Sixth Amendment confrontation right was satisfied. (40) The Court reasoned that although one purpose of the clause is to afford a defendant the right to face his accuser so that a jury may evaluate his demeanor and determine credibility, the clause's "primary object" was to prevent courts from using ex parte affidavits and depositions in lieu of live testimony. (41) The Court stressed the necessity of balancing the rights of the accused with public policy considerations and declared that "the rights of the public shall not be wholly sacrificed in order that an incidental benefit may be preserved to the accused." (42)

      2. The Supreme Court Emphasizes the Importance of Cross-Examination: Pointer v. Texas and Barber v. Page

        The Court's next major Confrontation Clause decision came in 1965, when it considered whether the Constitution requires application of the Sixth Amendment's confrontation right to the states under the Fourteenth Amendment. (43) In Pointer v. Texas, (44) an armed robbery case, the defendant, Pointer, objected to the prosecution's admittance of a witness's damaging statement made at a preliminary hearing. (45) The witness had moved away after the hearing and the prosecution sought to introduce the witness's statements by demonstrating the witness's unavailability. (46) At the preliminary hearing, however, Pointer did not have an attorney and he did not cross-examine the witness. (47) Pointer therefore claimed that when the court admitted the testimony, it denied him his constitutional right to confront the adverse witness. (48) The Texas Court of Criminal Appeals disagreed and upheld Pointer's conviction, concluding that the prosecution's use of the witness's transcript from the preliminary hearing did not violate Pointer's Sixth and Fourteenth Amendment rights. (49)

        The Supreme Court reversed Pointer's conviction, holding that the Confrontation Clause applies to the states through the Fourteenth Amendment. (50) Confrontation is a fundamental right and the Fourteenth Amendment requires that states cannot deprive citizens of this right without due process. (51) The Court emphasized the importance of cross-examination and declared that it "is an essential and fundamental requirement for the kind of fair trial which is the country's constitutional goal." (52) The Court reasoned that this fundamental right required equal application, and the states, like the federal government, could not deny criminal defendants this protection. (53)

        The Supreme Court next considered the Confrontation Clause in Barber v. Page. (54) Barber's accomplice in an armed robbery testified against him at a preliminary hearing. (55) At the hearing, Barber's attorney chose not to cross-examine the accomplice. (56) At Barber's subsequent trial, the judge allowed the prosecution to introduce the accomplice's testimony from the first hearing. (57) Barber appealed the use of the accomplice's testimony, and the case eventually reached the...

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