A wavering bright line: how Crawford v. Washington denies defendants a consistent confrontation right.

• Author: Grimm, John R.
• Position: NOTES

1. INTRODUCTION

   The Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him...." (1) This guarantee, however, is sometimes at odds with the hearsay rule, which often allows the admission of statements even when the declarant is not present at trial. (2) Current Confrontation Clause jurisprudence has been defined by the struggle to reconcile these conflicting principles. In 1980, the Supreme Court developed a test that sought to balance these interests in Ohio v. Roberts. (3) Under Roberts, an unavailable declarant's hearsay statement was admissible against a criminal defendant, with no Confrontation Clause violation, as long as the statement bore adequate indicia of reliability or met a firmly rooted hearsay exception. (4) In 2004, however, the Court fundamentally altered this framework when it decided Crawford v. Washington. (5) Guided by a historical analysis of the Sixth Amendment, (6) the Court defined "witnesses" as "those who 'bear testimony'" (7) and recast the touchstone of admissibility from a statement's reliability to its testimonial nature.

   This Note argues that by relying on an erroneous definition for the word "witness," the Crawford doctrine fails to afford defendants substantially more protection than the now-maligned Roberts standard it replaced. Part II provides an overview of the Crawford line of cases and identifies areas that still need clarification. Part II then synthesizes a working standard under which statements will or will not be admitted.

   Next, Part III critiques the Court's definition of "witness." It considers the plain meaning of the Sixth Amendment's language and concludes that there is linguistic support for a broader definition than the one the Court chose. It then examines the Confrontation Clause's history and concludes that history supports either the Court's definition or a broader definition.

   Part IV demonstrates Crawford's adverse consequences and advocates for a new standard. First, Part IV argues that the Crawford standard is too restrictive and uses examples from post-Crawford cases to show that it is not a meaningful departure from the vague Roberts standard. Second, Part IV proposes a new admissibility standard that affords defendants better protection, consistent with the language and history of the Confrontation Clause. The new standard is simple: the Confrontation Clause bars all hearsay statements made by an unavailable declarant. At times this standard will be harsh and will admittedly lead to fewer criminal convictions. After considering the language and history of the Sixth Amendment, however, the proposed standard more fully encompasses all of the interests underpinning the confrontation right.

2. AN OVERVIEW OF CURRENT CONFRONTATION CLAUSE DOCTRINE

   Defendants "[i]n all criminal prosecutions ... shall enjoy the right ... to be confronted with the witnesses against [them]...." (8) This well-known rule, however, does not operate in a vacuum. Many criminal trials rely heavily on hearsay evidence, and the hearsay rule allows many statements to be admitted even when the declarant is unavailable. (9) This creates a tension between the Sixth Amendment's exclusionary effect and the hearsay rule's liberal policy of admission. In modern criminal trials, a Confrontation Clause question arises when the prosecution attempts to introduce the out-of-court statement of an unavailable declarant. If the statement satisfies a hearsay exception, the only barrier to its admission is the Confrontation Clause, (10) so the task of modern Confrontation Clause jurisprudence has been to identify when the Confrontation Clause is triggered with respect to hearsay evidence.

   1. The Confrontation Right Before Crawford v. Washington

      The source of the Supreme Court's current Confrontation Clause jurisprudence is Crawford v. Washington. (11) Prior to Crawford, the controlling case was Ohio v. Roberts, (12) and Crawford is best understood in comparison to what it replaced. Under Roberts, a hearsay statement by an unavailable declarant could be admitted against a defendant without violating the Confrontation Clause as long as the statement bore adequate indicia of reliability. (13) The Roberts standard could be satisfied in either of two ways: first, any hearsay statement meeting a "firmly rooted" hearsay exception satisfied Roberts; (14) second, a statement that did not satisfy a firmly rooted exception could nevertheless be admitted if it bore other "particularized guarantees of trustworthiness." (15)

      Assuming a statement met a hearsay exception, Roberts's' first prong required identifying which hearsay exceptions were "firmly rooted," and thereby admissible without violating the Confrontation Clause. The Supreme Court never provided an exhaustive list of firmly rooted hearsay exceptions, but in Lilly v. Virginia, (16) the Court defined a "firmly rooted" hearsay exception as one that, "in light of longstanding judicial and legislative experience ... rests on such a solid foundation that admission of virtually any evidence within it comports with the substance of the constitutional protection." (17) Most, but not all, hearsay exceptions found under the Federal Rules of Evidence, and their state analogues, were firmly rooted under Roberts. In particular, the dying declaration exception is often mentioned as a paradigmatic "firmly rooted" hearsay exception. (18) An exception could also become firmly rooted if it was recognized under the Federal Rules of Evidence and by a significant majority of the states. (19)

      Some hearsay exceptions, however, were not firmly rooted. In Lilly, the Supreme Court held that the "declaration against penal interest" exception was too broad to be considered categorically firmly rooted. (20) Thus, it violates a defendant's confrontation fight to admit inculpatory statements against penal interest if the statements are exculpatory of the declarant. (21) The so-called "residual exception," such as that codified in Rule 807 of the Federal Rules of Evidence was also held not to be firmly rooted. (22) This result was unlikely to affect admissibility under Roberts, however, because a statement only satisfies the residual exception if it has "circumstantial guarantees of trustworthiness." (23) By satisfying the residual exception, a statement would also satisfy Roberts's second prong of possessing indicia of reliability. (24) Between Roberts's two prongs, there was little room left for a hearsay exception to implicate the Confrontation Cause. By one means or another, under Roberts, a defendant was not guaranteed the right to cross-examine the declarant of virtually any hearsay statement used against him.

   2. Crawford's New Standard

      Under Roberts, the Sixth Amendment offered no protection against an accusatory statement that was otherwise admissible under a firmly rooted hearsay exception, including a formalized statement made to the police, if it was reliable. (25) Crawford fundamentally changed this approach. The defendant in Crawford was on trial for stabbing a man who allegedly tried to rape his (the defendant's) wife. (26) The wife did not testify at trial because of a state marital privilege. (27) During the investigation, however, she had a detailed conversation with police about the crime, in which she contradicted some of the defendant's claims. (28) A recording of the conversation was played to the jury. (29) Under Roberts, the wife's statement would be admissible. (30) In a departure, however, the Supreme Court examined not whether the statement satisfied a firmly rooted hearsay exception, but rather, whether it was "testimonial." (31) Writing for the Court, Justice Scalia ruled that under the new standard, playing the police interview when the wife was not available for cross-examination violated the defendant's confrontation right. (32)

      In deciding Crawford, the Court relied on the language and history of the Sixth Amendment. Justice Scalia emphasized that "the Confrontation Clause ... applies to 'witnesses' against the accused--in other words, those who 'bear testimony.'" (33) Crawford established a blanket rule of inadmissibility with respect to all testimonial hearsay. (34) Under the new standard, testimonial statements, no matter how reliable, cannot be admitted unless the defendant has an opportunity to cross-examine the declarant, or unless two important conditions are met. (35) If the defendant is not able to cross-examine the declarant at trial, the statement may only be admitted if: (1) the declarant is unavailable; (36) and (2) the defendant has had a prior opportunity for cross-examination. (37)

      Crawford's holding is styled as a bright-line rule. It is a shift from the Roberts reliability test, which was "so unpredictable that it fail[ed] to provide meaningful protection from even core confrontation violations." (38) But the Court did not elaborate on exactly what conditions would trigger Crawford in the first instance. Crawford applies to all testimonial hearsay, and only to testimonial hearsay; the entire scope of the rule is defined by what is "testimonial." Despite this important delimitation, the Court "[left] for another day any effort to spell out a comprehensive definition of 'testimonial.'" (39) A precise definition of "testimonial" was not necessary under the facts of Crawford, because "[s]tatements taken by police officers in the course of interrogations are ... testimonial under even a narrow standard[,]" (40) so the statements at issue would have been testimonial under any definition the Court chose. (41) Thus, although Crawford generally appears to announce a pro-defense rule, its actual benefit to defendants was made less certain by the Court's reluctance to precisely define "testimonial."

      The Court was first required to elaborate its definition of "testimonial" in 2006 when it decided Davis v. Washington. (42) Davis turned on...