Today's Confrontation Clause (after Crawford and Melendez-diaz)

• Publication year: 2022

43 Creighton L. Rev. 35. TODAY'S CONFRONTATION CLAUSE (AFTER CRAWFORD AND MELENDEZ-DIAZ)

TODAY'S CONFRONTATION CLAUSE (AFTER CRAWFORD AND MELENDEZ-DIAZ)

G. MICHAEL FENNER(fn*)

I. INTRODUCTION

In the Sixth Amendment to the United States Constitution, the Confrontation Clause states that, "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him."(fn1) This right applies to federal prosecutions directly from the Sixth Amendment and to state and local prosecutions by incorporation into the Due Process Clause of the Fourteenth Amendment.(fn2) In recent years the Supreme Court of the United States's understanding of the meaning of this Clause may well be the single part of constitutional law-certainly of criminal procedure-that has undergone the most radical change.(fn3)

Two Supreme Court judgments in roughly the past five years have introduced this change and have greatly expanded the right of the accused in criminal prosecutions to confront the witnesses against them. This Article is about this sharp turn in the law of the Confrontation Clause. After a brief discussion of the history of the Court's understanding of the Clause, this Article settles into a discussion of its new understanding, as found primarily in the Court's opinion in 2004's Crawford v. Washington (fn4) and its 2009 opinion in Melendez Diaz v. Massachusetts (fn5)-a discussion of where the Court's understanding sits today and where it may be headed. Throughout, the Article deals with the details of the coverage of the Confrontation Clause-when the right attaches and what the Clause requires when the right does attach.

Part II presents a brief history of the High Court's treatment of the Confrontation Clause-how the clause was understood prior to 2004 and how, in that year, that understanding changed.(fn6) Part III separates out and discusses Justice Thomas's understanding of the Clause, important because it supplies the fifth vote for the majority's new understanding of the right and, therefore, may be the vote that controls its scope.(fn7) Part IV discusses the elements foundational to the attachment of the confrontation right: testimonial statements; offered in a criminal prosecution; offered against the accused; and offered to prove the truth of the matter asserted (and, of course, the affect Crawford and Melendez-Diaz have had upon these requirements).(fn8) Part V is about the importance of raising Confrontation Clause issues before the start of the trial.(fn9) Part VI discusses situations where the right attaches and might at first glance appear to be infringed, but on a closer look is not.(fn10) Part VII discusses inefficiencies created by the right to confront, how the inefficiencies are not as great as they may at first glance seem, and how, in any event, whether the right is inefficient or not is largely irrelevant.(fn11) Part VIII concerns the traumatized victim of the crime-on-trial who will be further traumatized if made to testify against the accused victimizer.(fn12) Part IX covers situations where the Confrontation Clause might well have applied but the accused has either forfeited the right to invoke the clause or waived the right-to-confront objection-waived it during the trial or, upon appropriate motion, well before the trial.(fn13) Part X is about the harmless error rule as it applies to the confrontation right.(fn14) Part XI is a brief conclusion.(fn15)

II. A BRIEF HISTORY OF THE SUPREME COURT OF THE UNITED STATES'S INTERPRETATION OF THE CONFRONTATION CLAUSE

There is a close, perhaps obvious, relationship between the Confrontation Clause and the hearsay rule. Each deals with the same problem-the testimonial infirmities attached to second-hand evi-dence.(fn16) Each bars the receipt of some second-hand evidence.(fn17)

Exceptions to the bar of the hearsay rule are based on findings that particular categories of statements(fn18) or particular individual statements(fn19) tend to be reliable and, in some cases, that there is an unusual need for the evidence.(fn20) Hearsay reliability can be found in a number of ways: there was contemporaneous cross examination, the statement was made in the face of impending death or with the expectation that the it would lead to medical diagnosis or treatment, the time between the event and the statement was too short for the declarant to have fabricated a lie or have forgotten the relevant facts, and so forth.(fn21)

The limits to the bar of the Confrontation Clause also have to do with reliability. For years, Confrontation Clause jurisprudence more or less tracked the hearsay rule. The evidentiary rule and the constitutional clause dealt with the problem of the reliability of second-hand evidence in much the same way. The Confrontation Clause did "not bar admission of an unavailable witness's statement against a criminal defendant if the statement [bore] adequate indicia of reliability. To meet that test, evidence [had to] either fall within a firmly-rooted hearsay exception or bear particularized guarantees of trustworthiness."(fn22) In Crawford v. Washington ,(fn23) the Court dissolved the partnership between the Confrontation Clause and the hearsay rule. Reliability as a limit on the scope of the right to confront witnesses is no longer assessed by reference to the hearsay rule or to singular guarantees of trustworthiness inherent in the individual out-of-court statement at issue. Rather, "reliability [must] be assessed in a particular manner: by testing in the crucible of cross-examination."(fn24)Where the confrontation right applies, the accused must have had or currently have an opportunity to confront the witness through cross-examination.

The opinion in Crawford states these two important Confrontation Clause principles: The right to confront the declarant applies against "testimonial" out-of-court statements offered against the accused in a criminal prosecution to prove the truth of the matter asserted in the statement.(fn25) Introducing such a statement into evidence infringes the confrontation right of the accused unless the declarant's in-court testimony is unavailable and the accused had an opportunity to cross-examine the declarant.(fn26)

III. JUSTICE THOMAS'S UNDERSTANDING OF THE RIGHT AND THAT UNDERSTANDING'S IMPACT ON FUTURE CASES

Justice Thomas is a member of the five-Justice majority joining the opinion of the Court in Melendez-Diaz v. Massachusetts .(fn27) He wrote a concurring opinion in that case(fn28) and has written similar opinions in three other recent Confrontation Clause cases.(fn29) His understanding of the scope of the Confrontation Clause is narrower than that of the other four Justices in the Melendez-Diaz majority.

As noted above, the other four Justices in the majority find that the right to confront witnesses applies to the admission of "testimonial" out-of-court statements. Justice Thomas's "position [is] that 'the Confrontation Clause is implicated by extrajudicial statements only insofar as they are contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions.'"(fn30)

The difference is, of course, in the italicized word: "formalized ." This is a considerably narrower position than that of the other four Justices in the majority, narrower than saying that the right attaches to all testimonial statements, formalized or not. Justice Thomas sees a constitutionally significant difference between an alleged cocon-spirator's affidavit implicating the accused (the right does attach) and a recording made and, at trial, authenticated by the 911 operator who has answered a victim's call for help (the right does not attach).(fn31)

Four Justices believe that the coverage of the Confrontation Clause is quite broad,(fn32) four believe it is quite narrow,(fn33) and Justice Thomas's view falls in the middle.(fn34) His is the fifth vote. When the case arises where an out-of-court statement is offered against an accused, and the statement is "testimonial" but not "formalized," Justice Thomas's view should determine the outcome.(fn35)

IV. THE RIGHT ATTACHES TO A TESTIMONIAL OUT-OF-COURT STATEMENT OFFERED AGAINST THE ACCUSED IN A CRIMINAL PROSECUTION

There are several prerequisites to the application of the right to confront witnesses. First, and in no particular order, the right guaranteed by the Confrontation Clause is guaranteed to the "accused,"(fn36)and it attaches only in a "criminal prosecution[]."(fn37) Second, the evidence must be in the form of an out-of-court statement offered to prove the truth of the matter asserted.(fn38) Third, and most difficult to pin down, the statement must be "testimonial."(fn39)

A. Offered Against the Accused in a Criminal Prosecution

1. In General

The right guaranteed by the Confrontation Clause is a right of "the accused"-it says so right in the Sixth Amendment.(fn40) The prosecution does not have an equivalent constitutional right to confront witnesses against the State. When accused defendants seek to enter hearsay statements into evidence, the only rules they must get past are the rules of evidence-not the rules of evidence plus the Confrontation Clause.

Furthermore, the right only applies "[i]n ... criminal prosecu-tions."(fn41) It does not apply in civil proceedings, even those that are quasi-criminal; it does not apply in criminal proceedings that are not...