Summary exhibits and the confrontation clause: looking beyond the hearsay rule for evidentiary implications of Crawford's progeny.

• Author: Basaria, Karim
• Position: Symposium on Overcriminalization

1. INTRODUCTION

   The Confrontation Clause provides, "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." (1) This right is afforded to defendants in criminal cases by giving them the opportunity to cross-examine the witnesses who testify against them. According to the U.S. Supreme Court, the purpose of the Confrontation Clause is to "ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact." (2) However, before the Court's 2004 decision in Crawford v. Washington, criminal defendants were not guaranteed an opportunity to cross-examine a witness's out-of-court statement against them if the statement fell within a "firmly rooted hearsay exception" or was otherwise considered reliable. (3) Crawford effectively severed the relationship between the Sixth Amendment's Confrontation Clause and the hearsay rule, holding that a defendant's right to confrontation can only be satisfied when the defendant has the opportunity to cross-examine the witnesses against him. (4)

   After Crawford, the Court has made numerous attempts to categorically distinguish statements that trigger the confrontation right from statements that do not. Most of Crawford's progeny have attempted to distinguish "testimonial" statements, which trigger Confrontation Clause protections under the new standard, from "non-testimonial" statements, which do not receive constitutional scrutiny. (5) More recently, the Court has begun to address how and whether Crawford's progeny dictate which witnesses the government must call when confronting criminal defendants with their accusers. (6) The Supreme Court has yet to address whether charts, summaries, and calculations of voluminous data are testimonial. Such evidence is admissible under Federal Rule of Evidence (FRE) 1006. However, if this evidence is testimonial, the fact that it is admissible under FRE 1006 should not protect it from Sixth Amendment scrutiny. Under Crawford, the Confrontation Clause should prohibit the admission of a testimonial summary exhibit unless the defendant is given the opportunity to cross-examine the individuals whose assertions are contained in the summary evidence. To hold otherwise would be inconsistent with the Court's decision in Crawford, which effectively segregated the determination of evidentiary admissibility from the determination of constitutional admissibility.

   As courts continue to define the contours of the Sixth Amendment, the same concerns that led the Court to sever the hearsay rule from the Confrontation Clause will eventually require it to address whether the admission of testimonial summary exhibits raises Confrontation Clause concerns when the defendant is not afforded the opportunity to confront the individuals who made the assertions contained in the summaries.

   Part II of this Comment contains a brief history of our Confrontation Clause jurisprudence. Part II also provides a general overview of FRE 1006, which allows for the admissibility of summary exhibits. The right to confrontation can be traced back to long before the founding of this country. However, recent developments in Sixth Amendment jurisprudence have significantly expanded the scope of the right. Part III of this Comment explores the relationship between FRE 1006, the hearsay regime, and the Confrontation Clause. A summary exhibit can be testimonial in the same way certain hearsay statements are testimonial. This section of the Comment discusses why courts should subject testimonial summary exhibits to the same degree of constitutional scrutiny as testimonial hearsay evidence. In Part IV, this Comment explores how the Supreme Court's fractured decision in Williams v. Illinois (7) has confounded the Court's otherwise steady Confrontation Clause jurisprudence, and how that decision could impact whether summary exhibits receive constitutional scrutiny. Part V provides a conclusion to this Comment, asserting that the admission of testimonial summary exhibits without the right to cross-examination violates the Confrontation Clause under Crawford.

2. BACKGROUND

   1. THE CONFRONTATION CLAUSE BEFORE CRAWFORD

      A defendant's right to face his accuser has its roots in Roman law. The Roman governor Porcius Festus famously said of his prisoner, Paul the Apostle, "[i]t is not the manner of the Romans to deliver any man to die, before that he which is accused have the accusers face to face, and have license to answer for himself concerning the crime laid against him." (8) In English common law, the tragic story of Sir Walter Raleigh is often cited to illustrate the importance of being able to face one's accusers. (9)

      In the United States, the right to confrontation has been codified in the Sixth Amendment of the Constitution. "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." (10) The Roman and traditional English models differ from the Sixth Amendment in that the former provide only the right to face one's accuser, while the latter provides the right to face not only one's accuser, but also any adverse witnesses. (11) The Supreme Court held in Pointer v. Texas that the confrontation right applied to the states through the Fourteenth Amendment. (12) Before Crawford, the Sixth Amendment and the hearsay rule "dealt with the problem of the reliability of second-hand evidence in much the same way." (13) Secondhand statements offered against criminal defendants were presumed reliable if they fell within a "firmly rooted hearsay exception." (14) If a firmly rooted hearsay exception applied, the confrontation right did not attach. (15)

      The most recent articulation of this position was in the Supreme Court's 1980 decision, Ohio v. Roberts. (16) In Roberts, the Court held that a witness's out-of-court statement may be admitted against a criminal defendant without opportunity for cross-examination if the statement bears adequate indicia of reliability. (17) To meet that test, evidence had to either fall within a "firmly rooted hearsay exception" or bear "particularized guarantees of trustworthiness." (18)

   2. CRAWFORD AND ITS PROGENY

      In Crawford v. Washington, the Supreme Court overruled Roberts and severed the Confrontation Clause from the hearsay rule, (19) holding that the confrontation right will no longer be satisfied simply because a statement against the accused falls within a hearsay exception or bears "indicia of reliability." (20) In Crawford, the defendant was tried for the assault and attempted murder of a man who allegedly raped his wife. (21) At trial, the State played for the jury a tape-recorded statement that the defendant's wife made to the police. (22) The defendant did not have the opportunity to cross-examine his wife because Washington's marital privilege rule barred a spouse from testifying without the other spouse's consent. (23) However, privilege did not extend to a spouse's out-of-court statements admissible under a hearsay exception. (24) This allowed the State to admit the tape-recorded conversation by invoking a hearsay exception for statements against penal interest. (25)

      The defendant argued that--notwithstanding the state marital privilege and evidence laws--admitting the taped statements would violate his Sixth Amendment right to be "confronted with the witnesses against him." (26) Relying on the Supreme Court's decision in Ohio v. Roberts, the trial court admitted the statements over the defendant's objections on the basis that the defendant's wife's statements bore "particularized guarantees of trustworthiness." (27) The jury convicted the defendant of assault. (28) On appeal, Washington's higher courts avoided the constitutional question, instead deciding the case on whether the statements bore guarantees of trustworthiness. (29)

      In a watershed opinion, the Supreme Court overturned its decision in Ohio v. Roberts, holding that while "the [Confrontation] Clause's ultimate goal is to ensure reliability of evidence ... it is a procedural rather than a substantive guarantee," (30) which can only be satisfied by providing the accused an opportunity to cross-examine the witnesses against him, regardless of whether that witness's statement falls within a hearsay exception. (31) Because the defendant in Crawford was not afforded the opportunity to cross-examine his wife, the Court held that this right was violated by the State when it played the tape-recorded account of the stabbing. (32)

      The result from Crawford was an "expanded ... category of cases in which the hearsay rules will allow--but the Confrontation Clause will prohibit--the introduction of an out-of-court statement." (33) Justice Scalia, who wrote the Crawford opinion, stated that it is not enough for the statement to be reliable, but that this "reliability [needed to] be assessed in a particular manner: by testing in the crucible of cross-examination." (34) According to Crawford, "the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation." (35)

      While Crawford marked the beginning of a much broader construction of the Sixth Amendment, the Court placed an important limitation on the types of statements that would be inadmissible without confrontation. The defendant's right to cross-examine applies only to "testimonial" statements offered against the accused in a criminal prosecution to prove the truth of the matter asserted. (36) In other words, the right is not implicated when: (1) the statement is being offered for a purpose other than to prove the truth of its contents; (37) (2) the statement is not offered in a criminal prosecution against the accused; (38) or (3) the statement is not testimonial. (39)

      Because Crawford failed to lay out a comprehensive definition of testimonial, (40) the most...