The Confrontation Clause and the Hearsay Rule: the Current State of a Failed Marriage in Need of a Quick Divorce

• Publication year: 2022

33 Creighton L. Rev. 763. THE CONFRONTATION CLAUSE AND THE HEARSAY RULE: THE CURRENT STATE OF A FAILED MARRIAGE IN NEED OF A QUICK DIVORCE

Creighton Law Review

Vol. 33

JOSHUA C. DICKINSON(fn*)

"In all criminal prosecutions, state as well as federal, the accused has a right, guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, 'to be confronted with the witnesses against him.'"(fn1)

I. INTRODUCTION

In the past two decades, the United States Supreme Court has increasingly joined the concepts of the constitutional guaranty of confronting witnesses brought against a criminal defendant under the Sixth and Fourteenth Amendments and the common law and statutory hearsay concept.(fn2) This union has not been without its dissenters and the Court has yet to find a truly unified voice when it comes to this issue.(fn3) Majorities and pluralities have ebbed and flowed throughout this process, but the fidelity of the union between these seemingly distinct legal concepts remains consistent despite changes in the faces and dispositions of the members the Court.(fn4) The Court has been careful not to equate the Confrontation Clause with the hearsay rule, but recent rulings leave little doubt as to the linkage between the two.(fn5)

This article will propose an idea which many scholars and several Justices have been advocating since the beginning of this intellectual union - abolish the overintrusive relationship between the hearsay rule and the Confrontation Clause.(fn6) This article will express said course in a unique manner, which hopefully provides the same scrutiny and constitutional protection offered by the Court's current approach to these issues. But it will offer an approach true to the intent and original purpose of the Confrontation Clause while utilizing the protections and limitations of the hearsay rule itself, Rule 403 of the Federal Rules of Evidence, and the Due Process Clause of the Fifth and Fourteenth Amendments to the United States Constitution.

The author strives in this article to provide the reader with a comprehensive review of the current state of the Confrontation Clause as it relates to hearsay statements offered in court against criminal defendants. The author also endeavors to suggest a change in Confrontation Clause jurisprudence which simplifies the analysis a court must endure in determining whether an out-of-court statement offered against a criminal defendant is constitutionally permissible. This approach will avoid the inconsistent and anomalous results that the Court's current analytical approach periodically produces while maintaining the protections and spirit of the Court's current system.(fn7)

This article will begin in Section II by briefly tracing the sparse historical roots of the Confrontation Clause and discussing early case law and interpretations from the Supreme Court.(fn8) Section III will trace the development of the modern Court's marriage of the hearsay rule and the Confrontation Clause by examining several recent Supreme Court decisions.(fn9) Section III will end with a summary of the current state of the Court's Confrontation Clause jurisprudence as it relates to the hearsay doctrine.(fn10) Next, Section IV will suggest a constriction in the Court's interpretation of the Confrontation Clause that is more consistent with the Clause's original understanding and less susceptible to the transient pressures which often appear in the hearsay rule.(fn11) This approach, synthesized from writings of several re-formists in this area, will conclude that only by restricting the protections of the Confrontation Clause to statements elicited by the government can the Court return the Clause to a bedrock constitutional principle instead of a glorified rule of evidence.(fn12) Section V will both address the vacuum created in the wake of adopting the suggested constrictions in the Clause and point out the many safeguards inherent in our Constitution and our rules of evidence.(fn13) Section V suggests that the Court can constrict the reach of the Confrontation Clause so that it has independent meaning and still provides the same level of protection it currently offers to the defendant and the state, however, to do so it must give proper consideration to the hearsay rule, Rule 403, and the Due Process Clause. Hopefully, by demonstrating these many prophylactic measures in our criminal justice system, the Court will feel more comfortable in restricting its over-broad interpretation of the Confrontation Clause. Finally, Section VI concludes that only by significantly reducing the yoke between the hearsay rule and the Confrontation Clause can the Court avoid the inconsistent results and stretched legal interpretations it currently experiences.(fn14) The failed union between these legal concepts stretches the Clause beyond its intended fundamental principle and gives undue constitutional status to a simple rule of evidence.

II. HISTORY AND EARLY DEVELOPMENT OF THE CONFRONTATION CLAUSE

The origins of the Confrontation Clause are obscure and the subject of some debate.(fn15) The inspiration for the Confrontation Clause likely derived from the English system, but the concept of "facing the accusers against you" can be seen in the works of William Shakespeare and the Bible.(fn16) A popular tale from English history which scholars often credit as the ember which stoked the fires for the right to confrontation is the story of the trial of Sir Walter Raleigh.(fn17) In 1603, Sir Raleigh was put on trial for treason against the crown.(fn18) The prosecution's chief witness was one Lord Cobham, who never ac-tually testified in front of the jury. Instead, the prosecution relied upon witnesses who reported what Cobham had stated to them.(fn19) Sir Raleigh objected to this evidence and exclaimed "[p]roof of the Common Law is by witness and jury: let Cobham be here, let him speak it. Call my accuser before my face, and I have done."(fn20) The Confrontation Clause was arguably a backlash to these and other common abuses in the English system which the framers of the Bill of Rights specifically intended to repudiate.(fn21)

Over the years, many theories have been advanced regarding the intentions of the framers of the Bill of Rights in enacting the Confrontation Clause. Two recent scholars have examined the origins of the Clause as it applied in the sixteenth and seventeenth century English criminal justice system.(fn22) Not surprisingly, their conclusions as to the history of the Clause and its intended meaning by the framers support the theories they wish to advance as to changes in the Court's jurisprudence.(fn23) I will leave tracing the early origins of the Clause and its intended meaning in the English system to the scholar/historians hard at work on this task. Suffice to say, at this stage in the game, a wholesale revision of the Court's Confrontation Clause jurisprudence based solely on historical interpretation is at best unlikely.(fn24) However, some more recent historical interpretation and background may be a useful tool in shaping and refining the new direction the Court may decide to explore regarding the Clause.

Perhaps the earliest Supreme Court case interpreting the Confrontation Clause which is still cited by the modern Court is the 1895 case of Mattox v. United States.(fn25) In Mattox, a man had been convicted of a murder based, in part, upon the in court testimony of two witnesses.(fn26) The conviction had been overturned by the Supreme Court in an earlier proceeding and remanded to the lower court for a new trial.(fn27) By the time the new trial commenced the two witnesses had died, and so the prosecutor offered the reporter's stenographic notes from the previous trial as evidence against the defendant.(fn28) Both men had been presented and were fully cross-examined by the defendant at the previous trial.(fn29) The defendant was again convicted of murder and filed a writ of error with the United States Supreme Court, claiming his rights to confront the witnesses against him had been violated by admittance of the reporter's notes.(fn30)

In taking up this writ, the United States Supreme Court first noted that it was bound to determine the meaning of the Bill of Rights as it existed at the time it was adopted and understood since the days of the Magna Charta.(fn31) The Court further noted that the primary objective of the Confrontation Clause:

was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness, in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.(fn32)

The Court further held that the rights inherited from the English system, such as the right to confront the witness against you, were never understood to be absolute rights and they must give way to exceptions which support the greater public good.(fn33) The Court stated that "[a] technical adherence to the letter of a constitutional provision may occasionally be carried farther than is necessary to the just protection of the...