Throwing stones from within a glass house: why the procedural approach to confrontation fails to remedy the ills of the indicia of reliability test, and an argument for a balanced rule.

• Author: Eddy, Gordon

1. INTRODUCTION

   In June of 2004, the Supreme Court, in an opinion authored by Justice Scalia, decided Crawford v. Washington (1) and effected what purported to be a drastic change in Confrontation Clause jurisprudence. (2) Writing from a strict originalist point of view, (3) the Court took issue with what it deemed to be the "malleable standard" (4) of Ohio v. Roberts, (5) the controlling precedent for nearly twenty-five years. Specifically, the majority criticized Roberts's substantive approach, which construed the Confrontation Clause as guaranteeing the reliability of hearsay statements admitted against an accused, (6) for "fail[ing] to protect against paradigmatic confrontation violations" that the Clause was originally purposed to prevent, namely, ex parte testimonial statements. (7) The Court set forth a new approach that construed the Clause as a "procedural rather than a substantive guarantee" that demands "that reliability be assessed in a particular manner: by testing in the crucible of cross-examination." (8) However, in rendering the Crawford opinion, the Court declined to articulate a working definition of "testimonial." (9) The majority acknowledged that this would create turmoil in the country's courts, but asserted that any "interim uncertainty" would not yield results any worse than those reached under the Roberts line. (10) Perhaps it also believed that whatever minor collateral damage was done would be worth suffering in order to accomplish the shift to a standard more easily and predictably applied, (11) and more in line with original intent. (12)

   Two years later, the Supreme Court got an opportunity to clarify the meaning of "testimonial" in Davis v. Washington, and its companion case, Hammon v. Indiana. (13) The result was the infusion of a "reasonable man" standard into the formulations of the definition of "testimonial" suggested in Crawford, (14) and a step away from Crow ford's primary objective: to protect the confrontation right by creating a bright-line rule that removed the element of judicial discretion in deciding what evidence is to be excluded pursuant to the Confrontation Clause. (15)

   Part II of this Comment will focus on a discussion of pre-Crawford Confrontation Clause jurisprudence, particularly with respect to the Roberts holding. Part III will discuss Crawford and Davis and their criticism of Roberts, and will point out how they suffer from many of the same flaws that they identify in Roberts, without retaining the most important virtues of that holding. Part IV will undertake a comparative analysis of Crawford and Roberts with respect to the flaws Crawford identifies in Roberts, and illustrate how Crawford's procedural approach threatens the public interest in effective enforcement of the criminal law (16) without contributing to the discovery of truth.

   In conclusion, this Comment will argue for a rule that "steer[s] [the] middle course among proposed alternatives," as Roberts attempted to do. (17) That is, the rule should address the majority's criticism of Roberts as too permissive a standard to protect defendants' confrontation rights, and at the same time avoid the rigidity of a bright-line rule that disserves the public by formalistic adherence to procedure without regard to whether it makes any contribution to the discovery of truth.

2. PRE-CRAWFORD CONFRONTATION CLAUSE JURISPRUDENCE--THE SUBSTANTIVE APPROACH

   At the time the Roberts opinion was handed down, the Court had already spent nearly a century developing Confrontation Clause jurisprudence which recognized that, as with many other individual rights enjoyed before the Constitution was adopted, an accused's right to confrontation is not absolute. (18) Roberts joined a long line of cases that recognized that formalistic adherence to the letter of the Confrontation Clause would result in miscarriage of justice. (19) Since at least 1895, the Court has been cognizant that the right of confrontation may "be carried farther than is necessary to the just protection of the accused, and farther than the safety of the public will warrant." (20) Thus, for at least eleven decades before the Crawford opinion, the Court labored to develop a standard that afforded defendants' their Constitutionally guaranteed confrontation right, while still taking account of "'considerations of public policy and the necessities of the case'" (21) such that justice may ultimately be attained. (22) There is a point, implicit in this approach and expressly noted by the Court, at which the necessities attendant to seeing justice done, or the public interest in effective law enforcement vindicated, "may warrant dispensing with confrontation at trial." (23) This is especially so where confrontation is unlikely to contribute in a meaningful way to discerning the truth about events in question at trial, and may thus be said to be merely an "incidental [procedural] benefit" to the accused at the expense of substantive justice. (24)

   Pre-Crawford jurisprudence afforded the flexibility necessary to strike such a balance by its conception of the confrontation right, not as an end itself, but as a means to the end of promoting fairness to the accused in a criminal trial. (25) The Clause was construed to serve this end by ensuring that evidence received against an accused was reliable, and that an accused would not suffer the consequences of criminal conviction on the basis of testimony developed under circumstances tending to breed falsity and contrivance on behalf of the declarant. (26) It was well recognized that, while cross-examination may be "the 'greatest legal engine ... for the discovery of truth,'" (27) it is not the only one, and, given the "purpose to augment accuracy in the factfinding process" (28) attributed to the Confrontation Clause by pre-Crawford Courts, hearsay could be admitted despite the absence of cross-examination so long as it bore "adequate 'indicia of reliability'" (29) (i.e., so long as "'there [was] no material departure from the reason of the general rule.'"). (30)

   The rule embodying the substantive approach was ultimately articulated in Roberts, which held that where a declarant is unavailable for trial, his hearsay statement may nonetheless be admitted, despite the absence of any opportunity for the defendant to cross-examine, when the statement "bears adequate 'indicia of reliability." (31) Reliability, the Court said, could "be inferred without more [where a statement] falls within a firmly rooted hearsay exception." (32) If a statement did not fit such an exception, it could still be admitted upon a showing that the facts and circumstances surrounding the statement imbued the statement with "particularized guarantees of trustworthiness." (33) This focus on the Confrontation Clause as guaranteeing an adequate test of truth to criminal defendants brought the purpose of the Clause in line with the purpose of hearsay rules, a congruence the existence of which the Roberts court described as a "truism." (34) By guaranteeing reliability of evidence to an accused, but leaving available means for determining reliability alternative to cross-examination, the Court struck a compromise between defendants' interest in confrontation and society's interest in effectively prosecuting crime. (35) The substantive approach is thus grounded in practical considerations, and its flexibility accommodates "the workaday world of ... criminal trials." (36) The Roberts rule endured for 24 years, from 1980 through 2004, when it was abruptly overruled in Crawford.

3. THE DEVELOPMENT OF JURISPRUDENCE EMBRACING THE PROCEDURAL APPROACH: CRAWFORD, DAVIS, AND THE CRITICISM OF ROBERTS

   1. The Crawford Rationale and Rule

      Despite the well established and enduring Confrontation Clause jurisprudence culminated in Roberts, (37) cases involving the confrontation right began to resonate with Originalists' grumblings that the course of the Clause's development had strayed from the Framers' intent, and, over the years since Roberts, opinions advocating a new approach began to emerge. (38) Chief among their concerns was that the jurisprudence developed under the Roberts line was divergent from the meaning of the Clause's text and history. (39) The phrase "witnesses against" (40) was the Originalists' focus and the cornerstone of their rationale supporting the procedural approach. (41) Though various possible interpretations of this phrase were recognized, (42) history, the Court said, instructed that it meant "those who give testimony against the defendant." (43) "'Testimony,' in turn, is typically '[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.'" (44) Additionally, the premise, fundamental to the substantive approach, "that 'hearsay rules and the [c]onfrontation [right] are generally designed to protect similar values,' (45) and 'stem from the same roots'" (46) was rejected as historically unsupported. (47) By this route, the Originalists concluded that the Framers meant the Confrontation Clause to require cross-examination of all testimonial statements, regardless of reliability. (48)

      Finally, in 2004, the Originalists were able to command a majority of the Court, and the Crawford decision was rendered. (49) The putative intentions of the Framers were embodied in a "procedural ... guarantee" (50) that "impose[s] an absolute bar to [hearsay] statements [offered against an accused] that are testimonial, absent a prior opportunity to cross-examine." (51) However, in formulating this rule, the Court opted not to give a definitive meaning to the term "testimonial." (52) Rather, it offered three possible interpretations. (53) Testimony, the Court said, could be "'ex parte in-court testimony or its functional equivalent--that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would...