Taking confrontation seriously: does Crawford mean that confessions must be cross-examined?

• Author: Summers, Mark A.

ABSTRACT

This article focuses on the applicability of the Supreme Court's decision in Crawford v. Washington to one subcategory of party admissions--defendants' confessions "taken by police officers in the course of interrogations." Such statements fall within Crawford's core class of testimonial statements, which must be subjected to cross-examination either at the time they are made or at trial in order to satisfy the Confrontation Clause. In some post-Crawford cases, defendants have argued that the failure to comply with Crawford should bar the prosecution from using their confessions. The lower courts have uniformly held that Crawford does not apply to a defendant's own confession because such statements are defined by the Federal Rules of Evidence as "not hearsay," and Crawford applies only to "testimonial hearsay." In this article, I argue that, as a definitional matter, Crawford does apply to confessions, but that they should be exempted from Crawford's cross-examination requirement on "historical grounds."

1. INTRODUCTION

   The "Crawford" (1) revolution of 2004 radically changed how courts were to determine whether admitting hearsay violated a criminal defendant's Sixth Amendment confrontation rights by switching the focus from the reliability of the statement itself to the cross-examination of the person who made the statement. (2) As a result, the focus of the Confrontation Clause (3) became whether or not hearsay statements that the Craw ford Court called "testimonial" had been subjected to cross-examination. (4) Since 2004, a new "Crawford" case has reached the Supreme Court almost every term, (5) some of them grappling with the question Crawford intentionally left unanswered: (6) what does "testimonial" mean? (7)

   One potential "Crawford" issue has yet to make it to the High Court: Crawford's effect on the hearsay "exemptions" found in Federal Rule of Evidence 801(d)(2), collectively labeled as "An Opposing Party's Statement." (8) At first blush, this makes sense because party statements are deemed "not hearsay" by the Federal Rules of Evidence (9) and according to the Crawford Court, the "primary object" of the Sixth Amendment's Confrontation Clause is "testimonial hearsay." (10) Nonetheless, there is an argument that party statements should not be exempted from Craw ford on those grounds because prior to the Federal Rules, party statements were treated as hearsay admitted subject to an exception. (11) Thus, their current non-hearsay status is largely a matter of labeling (12) and should not affect how they are treated for Crawford purposes.

   Moreover, unlike non-hearsay statements exempted from Crawford scrutiny because they are not admitted for their truth, (13) party statements are both admitted for truth and often provide powerful evidence of a defendant's guilt. (14) And statements that are not hearsay because they are not offered for their truth presumably need not be subjected to cross-examination because their reliability is not an issue--that is, it does not matter whether they are true. (15)

   This article will focus primarily on the applicability of Crawford to one subcategory of party statements: a defendant's confession "taken by police officers in the course of interrogations," which fall within Craw ford's "core class of 'testimonial' statements." (16) Confessions also satisfy the definition of hearsay, since they are out-of-court statements admitted for their truth. (17) And, finally, they appear to satisfy Crawford's other requirements: the person who made the statement is unavailable as a witness at trial and was not cross-examined at the time the statement was made. (18) Nevertheless, no post-Crawford court has seriously considered whether confessions admitted without cross-examination violate the Confrontation Clause and many have admitted them into evidence simply because they are deemed not hearsay by the Federal Rules of Evidence. (19)

   In spite of this simplistic approach, it may be that these courts have reached the correct result. One explanation is that Crawford's inclusion of statements made in response to police interrogation within its "core class" of testimonial statements is meant to refer to the statements of others and not to the defendant's own statements. (20) After all, Crawford itself dealt with a statement made by the defendant's wife to the police and not the defendant's confession. (21) Another possibility is that there is a pre-Federal Rules justification for the treatment of party statements as "not hearsay" and that therefore their current categorization as such is not just semantics. (22) Finally, it may be that, since a criminal defendant is present at trial when her confession is admitted into evidence, she is not unavailable in the sense that the Craw ford Court used that term. (23)

   This article will consider, in turn, these possible explanations for the outcomes in the post-Crawford testimonial confession cases. It will also consider whether Craw ford should apply to the other categories of party statements covered by Rule 801(d)(2). Finally, it will argue that a plausible reading of Crawford could result in the exclusion of confessions that were not cross-examined at the time they were made, and offer a solution that would avoid this unintended outcome.

2. DOES A DEFENDANT'S CONFESSION SATISFY CRAWFORD'S THREE PREREQUISITES?

   1. Is a Defendant's Confession "Testimonial"?

      Crawford applies only to "testimonial" out-of-court statements, the "comprehensive definition" of which the Court intentionally left to be worked out in future cases. (24) Nonetheless, the Court made it clear that a statement made in response to police interrogation falls squarely within its "core class" of testimonial statements. (25) To reach this position, Justice Scalia, writing for the majority in Crawford, started with the language of the Confrontation Clause: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." (26) Justice Scalia then turned to history to determine whether the founders understood "'witnesses against' a defendant to mean those who actually testify at trial, those whose statements are offered at trial, or something in between." (27) Notwithstanding this indication of a somewhat broader inquiry, Justice Scalia's focus thereafter is almost exclusively upon out-of-court statements that might have been offered in evidence at trial and whether cross-examination of such a statement was a pre-requisite to its admissibility. (28) One source of evidence similar to a modern police interrogation was the "Marian" bail and committal procedure, (29) which "required justices of the peace to examine suspects and witnesses in felony cases and to certify the results to the court." (30) And while there was once some doubt whether the cross-examination requirement applied to these interrogations, "by 1791 (the year the Sixth Amendment was ratified), courts were applying the cross-examination rule even to examinations by justices of the peace in felony cases." (31)

      Those who must be cross-examined (i.e., witnesses) are those who give testimony that is "[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact." (32) According to Justice Scalia, it is therefore such "testimonial" statements, when offered into evidence at trial, which must have been cross-examined at the time made if the person who made the statement is unavailable to testify. (33) Since "[s]tatements taken by police officers in the course of interrogations are ... testimonial," (34) as a definitional matter, a defendant's own confession could be included within this category. Nonetheless, it seems clear that Justice Scalia meant to include only statements made by "[a]n accuser who makes a formal statement to government officers." (35)

      Yet, reading a defendant's confession to the police out of Crawford's definition of "testimonial" statements is problematic for several reasons. First, as the analysis above suggests, such an interpretation is contrary to the plain language of Crawford. Second, on its face, it leads to an unavoidable contradiction--an accusatory statement made by a third party to the police is "testimonial," while a self-accusatory statement made by a defendant under exactly the same circumstances is not. (36) And, finally, it would put Crawford's understanding of the word "witness" as used in the Confrontation Clause at odds with the Court's interpretation of the same word in the Fifth Amendment. (37)

      Well before Craw ford was decided, Professor Akhil Amar made an argument for a Craw ford-like reading of the Confrontation Clause that avoids these problems. (38) Professor Amar starts from the proposition that:

      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.... (39) Accordingly, "an out-of-court declarant whose utterance is introduced for the truth of the matter of asserted" (40) is only considered to be a witness when it is necessary to prevent violations of the Confrontation Clause by prosecutorial "sneakiness." (41) Thus, witnessing encompasses some kinds of out-of-court statements, such as "videotapes, transcripts, depositions, and affidavits when prepared for court use and introduced as testimony," (42) including any such substitute testimony given by the defendant "under penalty of contempt." (43) This distinguishes Professor Amar's approach to confrontation from Crawford's by excluding a defendant's confession to the police since there is no threat of contempt when the police interrogate a defendant. The confessing defendant is therefore not a witness and his confession is not "testimonial." The witness whom the defendant has the right to confront is the...