The Road to Understanding the Confrontation Clause: Ohio v. Clark Makes a U-Turn

• Author: Julien Petit
• Position: J.D./D.C.L., 2017, Paul M. Hebert Law Center, Louisiana State University.
• Pages: 175-208

The Road to Understanding the Confrontation Clause: Ohio v. Clark Makes a U-Turn INTRODUCTION A police officer, a psychologist, and an emergency room doctor walked into a bar. The three took their seats near the back of the bar, where the front area was no longer visible. While waiting for their first round, a man burst into the bar, mugged a patron, and ran out the door. Although none of the three saw the mugger or the victim, they heard the mugging and reacted. All three rushed to the front of the bar and saw the victim standing in shock. The patron clutched his chest and began to have a heart attack. The officer, doctor, and psychologist all asked the patron, “What happened?” With his dying breath the patron said, “John Johnson.” Later, the police arrested John Johnson after determining that not only was John in the area that night, but the patron owed him a large debt. No witnesses saw John mug the patron. The only direct evidence that linked the arrestee to the crime was the patron’s dying statement: “John Johnson.” Before determining whether this out-of-court statement is admissible under a hearsay exception, it must first meet the scrutinizing standards of the Confrontation Clause. 1 The United States Supreme Court held in Ohio v. Clark that the primary purpose of a statement determines whether said statement is testimonial, which in turn determines whether under the Confrontation Clause it enters into evidence at trial. 2 The purpose of the questioner and the speaker in an interrogation are both relevant. 3 If the primary purpose of the questioning was to create a substitute for in-court testimony, then the statement cannot enter into trial without the presence of the declarant or a prior opportunity to cross-examine him or her. 4 Looking to the purpose of the three patrons’ conversation with the victim, the doctor likely wanted to render medical assistance to a person clutching his chest, not elicit statements that would lead to prosecution. Copyright 2016, by JULIEN PETIT. 1. U.S. CONST. amend. VI (“In all criminal prosecutions, the accused shall . . . be confronted with the witnesses against him . . . .”). The focus of this Comment is on the admissibility of statements under the Confrontation Clause, not whether a statement meets a hearsay exception or the consequences of hearsay statements. 2. Ohio v. Clark, 135 S. Ct. 2173 (2015). Assuming the statement also meets one of the hearsay exceptions and meets the Confrontation Clause’s requirements, it will enter into evidence. 3. Michigan v. Bryant, 562 U.S. 344, 367–68 (2011). 4. See discussion infra Part I.C.1. 176 LOUISIANA LAW REVIEW [Vol. 77 The psychologist could have been asking the victim what happened to him for a multitude of reasons. The officer’s purpose could have been one of two possible reasons: to assist in the ongoing emergency of the patron’s heart attack or to identify the perpetrator. Although the mugger’s freedom to move freely and commit future crimes could be a threat to the public, rendering this emergency ongoing, police officers have a duty to investigate and arrest criminals, which points to a prosecutorial purpose. 5 Since Crawford v. Washington , 6 lower courts have struggled to apply the testimonial standard and the Supreme Court has attempted to clarify its interpretation of what statements are testimonial. 7 Most of the Court’s rulings reference only certain principles in Crawford applicable to the circumstances of the case without referencing the other jurisprudence available. Lower courts have interpreted these selective holdings to mean that the Supreme Court prioritized one aspect of the Crawford ruling and purposefully omitted other parts of the ruling from the analysis. 8 In 2015, in Ohio v. Clark , the Supreme Court addressed some of these issues arising from Crawford and subsequent cases. 9 Although the Court attempted to provide clarity, its most recent ruling created more complexity and vagueness in the analysis of testimonial statements. A clearer analysis is needed to mitigate the interpretive problems that courts confront under the Confrontation Clause. Part I of this Comment discusses the Confrontation Clause and summarizes the state of the law before Ohio v. Clark . Part II explains the holding and reasoning of the Court’s decision in Ohio v. Clark . Part III analyzes the problems that the decision caused and how these problems affect the admissibility of statements into evidence. Part IV proposes a two-part test to be applied under the Confrontation Clause, eliminating confusion and providing a clear analysis for lower courts to adopt. 5. See discussion infra Part I.C.1. 6. Crawford v. Washington, 541 U.S. 36 (2004). 7. Andrew W. Eichner, The Failures of Melendez-Diaz v. Massachusetts and the Unstable Confrontation Clause , 38 AM. J. CRIM. L. 437, 441 (2011). The Supreme Court declined to articulate an all-encompassing definition of “testimonial.” See Crawford , 541 U.S. at 68. 8. See Clark v. State, 199 P.3d 1203, 1208 (Alaska Ct. App. 2009) (stating that the objective witness test was improper to use based on a recent Supreme Court ruling). 9. Ohio v. Clark, 135 S. Ct. 2173 (2015). 2016] COMMENT 177 I. BACKGROUND: EVOLUTION OF THE CONFRONTATION CLAUSE The Sixth Amendment, which contains the Confrontation Clause, provides important rights to defendants in criminal trials. The Sixth Amendment provides the following: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him ; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his [defense]. 10 The procedural protection “to be confronted with the witnesses against him” is known as the Confrontation Clause 11 and applies to criminal cases in both federal and state court. 12 The underlying purpose of the Confrontation Clause is to allow a criminal defendant to cross-examine a witness testifying against him. 13 The right to cross-examine the prosecution’s witness during a criminal case guarantees the defendant’s fundamental life and liberty 14 and is an essential safeguard of a fair trial. 15 A. The Confrontation Clause and Hearsay Exceptions Initially, the Confrontation Clause was not controversial. 16 The Clause applied only to federal matters because the Bill of Rights was not 10. U.S. CONST. amend. VI (emphasis added). 11. Id.; Ohio v. Roberts, 448 U.S. 56, 62–63 (1980), abrogated by Crawford , 541 U.S. 36. 12. Crawford , 541 U.S. at 42 (citing Pointer v. Texas, 380 U.S. 400, 406 (1965)); see also Roberts , 448 U.S. at 62 (stating that the Fourteenth Amendment renders the Confrontation Clause applicable to the states). 13. Pointer , 380 U.S. at 406–07. The right to confront a witness is fundamental, and “certainly no one . . . would deny the value of cross-examination in exposing falsehood and bringing out the truth in the trial of a criminal case.” Id. at 404. 14. See discussion infra Part I.A. 15. Pointer , 380 U.S. at 410 (Goldberg, J., concurring) (first citing Kirby v. United States, 174 U.S. 47, 55 (1899); and then citing Alford v. United States, 282 U.S. 687, 692 (1931)). 16. Richard D. Friedman, Crawford , Davis , and Way Beyond , 15 J.L. & POL’Y 553, 553 (2007). 178 LOUISIANA LAW REVIEW [Vol. 77 applicable to the states until Congress passed the Fourteenth Amendment and the Supreme Court ruled in Pointer v. Texas to incorporate the Sixth Amendment. 17 Initially, the Supreme Court and lower courts struggled to detail the extent of the Clause’s protections because numerous out-of-court statements were already allowed to enter into evidence without the witness’s presence, such as a deceased witness’s statement, even before the Amendment’s incorporation to the states. 18 For the last 50 years, the Supreme Court has repeatedly addressed the application of the Clause to out-of-court statements, evolving the application with each new decision. A literal reading of the Confrontation Clause’s text effectively bars any statements 19 introduced in court without the presence of the speaker in court for cross-examination. 20 Early decisions called for a stricter interpretation that conformed more closely with a literal reading of the Clause, which barred the admissibility of certain out-of-court statements into evidence that qualify as hearsay. 21 Since these early decisions, however, the Supreme Court has held that reading the Confrontation Clause too strictly would abrogate every hearsay exception, a result the Court considered too extreme. 22 Courts slowly began to relax their 17. Pointer , 380 U.S. at 407. 18. Friedman, supra note 16, at 554. See, e.g. , Mattox v. United States, 156 U.S. 237, 241 (1895) (noting that admissibility of testimony was favored when the defendant was present at the examination of a deceased witness when either before a magistrate or at a former trial); United States v. Macomb, 26 F. Cas. 1132, 1134 (C.C.D. Ill. 1851) (No. 15,702) (ruling that if the defendant confronted and cross-examined the witness under oath and the witness then dies, the testimony may be admitted); State v. Jordan, 34 La. Ann. 1219, 1219 (1882) (“The deposition of a witness taken on the preliminary examination before a magistrate, is not admissible on the trial before the jury, if the State or prosecutor can, by due diligence, bring the witness into court.”); State v. McO’Blenis, 24 Mo. 402, 433 (1857) (finding no issue with the admissibility of dying declarations). 19. See FED. R. EVID. 801(a) (defining a statement as a person’s oral or written assertion). 20. Ohio v. Roberts, 448 U.S. 56, 63 (1980), abrogated by Crawford v. Washington, 541 U.S. 36 (2004). 21. See Crawford , 541 U.S. at 49 (first citing...