SEATTLE UNIVERSITY LAW REVIEWVolume 35, No. 2WINTER 2012
Evading Confrontation: From One Amorphous Standard to Another
Marc McAllister(fn*)
I. Introduction
The Sixth Amendment's Confrontation Clause provides an accused the right "to be confronted with the witnesses against him."(fn1) As interpreted by the United States Supreme Court, the right of confrontation assures criminal defendants the opportunity to cross-examine individuals who present testimony against them.(fn2)
The confrontation right applies not only to testimony captured at trial but also to similar out-of-court statements.(fn3) For nearly twenty-five years, courts adhered to the 1980 United States Supreme Court decision in Ohio v. Roberts,(fn4) which allowed out-of-court statements to be admitted when those statements fell within a "firmly-rooted hearsay exception" or were otherwise deemed "reliable."(fn5) Under the Roberts standard, prosecutors were often able to admit evidence against an accused in the absence of actual confrontation-meaning there was no opportunity for cross-examination.(fn6)
Over time, the Roberts standard proved easily manipulable by courts(fn7) and "often fail[ed] to protect against paradigmatic confrontation violations."(fn8) To correct the problem of unbridled judicial discretion and to better ensure the confrontation right, the Court replaced the Roberts test with a rigid cross-examination requirement(fn9) in its 2004 decision, Crawford v. Washington.(fn10)
In overruling Roberts, the Crawford Court's goals were to prevent testimonial evidence from reaching the factfinder absent adversarial test-ing,(fn11) and to remove the judicial discretion that had permitted such core confrontation violations.(fn12) Crawford stated each of these goals explicitly. For example, the Crawford Court declared that its goal was to prevent "open-ended [confrontation] exceptions . . . [being] developed by the courts."(fn13) Further emphasizing the Court's desire to limit judicial discretion, Crawford declared, "[The Framers] . . . knew that judges . . . could not always be trusted to safeguard the rights of the people . . . . They were loath to leave too much discretion in judicial hands."(fn14)
Despite the intentions in Crawford, only seven years later, the very deficiencies of the Roberts rule have been revived.(fn15) The erosion of Crawford has occurred through the Court's distinction between testimonial hearsay, which requires confrontation,(fn16) and nontestimonial hearsay, which does not.(fn17) Although this distinction appears to create a bright-line rule, the testimonial/nontestimonial framework is just as ma-nipulable as the Roberts rule.
While the potential problem of malleability existed not long after Crawford,(fn18) the Court's most recent decision, Michigan v. Bryant,(fn19) significantly magnified the problem. Under Roberts, courts employed a host of factors to determine whether a particular hearsay statement was sufficiently reliable(fn20) and invoked the same factors to justify opposite outcomes, even with nearly identical facts.(fn21) Reminiscent of Roberts, Bryant notes more than ten factors courts should use to distinguish testimonial statements from nontestimonial statements.(fn22) Exacerbating the problem, Bryant instructs courts to consider "all relevant information" and to decide each individual case in context,(fn23) further increasing the likelihood of judicial manipulation.(fn24)
Despite Crawford's aims, Bryant assures a return to "open-ended [confrontation] exceptions"(fn25)-exactly what the Crawford Court sought to prevent.(fn26) To restore the promise of Crawford, this Article proposes a bright-line test to replace Bryant's totality-of-the-circumstances test, one that particularly governs out-of-court statements. Under my proposed test, any statements obtained from a would-be witness during the crime'sres gestae,(fn27) whether volunteered or the result of interrogation,(fn28) would be deemed nontestimonial and therefore exempt from confrontation. On the other hand, statements obtained from a would-be witness outside the res gestae of the crime would be deemed testimonial and therefore inadmissible in the absence of confrontation.
This proposed rule rests on the presumption that questioning and corresponding statements made during a crime's res gestae are usually intended to resolve the crime and prevent the criminal from successfully escaping. While a crime is still occurring and the suspect is still on the loose, a declarant and interrogator are typically focused on assessing the situation, dealing with potential threats, and apprehending a perpetrator. The intent to record evidence for later use might be a factor at this time but generally is not the primary objective until the situation has been secured.
Alternatively, by the time the res gestae has ended, statements of a would-be witness, whether volunteered or made in response to structured questioning, would be deemed testimonial by most courts. This presumption is supported by recent cases, many of which have deemed testimonial a victim's statements to police after the assailant's arrest or separation from the declarant.(fn29)
To preserve its bright-line nature, my proposed rule would apply to statements made to police and nonpolice interrogators. Regardless of the interrogator's identity, accusatory statements made after a crime has been committed and after the assailant no longer poses a threat "do precisely what a witness does on direct examination," thereby triggering the same confrontation concerns and making the accusation ripe for cross-examination.(fn30)
Before outlining the details of my proposed test, Part II of this Article summarizes the Supreme Court cases that establish the existing Confrontation Clause framework, particularly those that govern statements made in response to interrogation: Crawford, Davis v. Washington, Hammon v. Indiana,(fn31) and Bryant. This Part examines how the meaning of "testimonial" in Sixth Amendment jurisprudence has evolved to its current manipulable status after Bryant.
Part III examines the primary method for evading confrontation- manipulation of the testimonial/nontestimonial distinction, which is just one method of evasion among many.(fn32) This Part summarizes the specific means courts have employed to manipulate the "primary-purpose" test, the overarching Bryant standard that determines whether a statement is testimonial.(fn33) Methods of evasion discussed within this Part include selective or inconsistent application of the factors discussed in Bryant, isolating one purpose among many concurrent purposes, and disregarding the testimonial nature of interrogations conducted by nonstate actors.
Part IV details the ongoing expansion of the Confrontation Clause's primary exceptions, forfeiture by wrongdoing and dying declarations. Forfeiture by wrongdoing is emphasized because, as compared to dying declarations, it is still subject to a great deal of ambiguity despite the Court's attempt at clarification in Giles v. California.(fn34)
Part V details my proposed bright-line substitute for Bryant's totali-ty-of-the-circumstances test, one more consistent with Crawford and less malleable than the Bryant test. Part VI concludes.
II. The Testimonial/Nontestimonial Distinction
This Part examines how the Court came to the current testimoni-al/nontestimonial distinction. Crawford revolutionized Confrontation Clause jurisprudence by establishing the testimonial/nontestimonial distinction, an improvement over the manipulable Roberts standard. Two years later, Davis clarified the meaning of "testimonial," but it also proved to be somewhat manipulable. Bryant, the Court's most recent decision in this area, has fully revived the flaws of Roberts.
The Confrontation Clause assures the right of an accused "to be confronted with the witnesses against him."(fn35) As the text suggests, the confrontation right prevents a prosecutor from admitting into evidence the "unconfronted" statements of witnesses.(fn36) The term "witnesses," according to Crawford, includes "those who 'bear testimony.'"(fn37) The phrase "confronted with" requires at least an opportunity to cross-examine the accusing witness.(fn38)
According to the Court, because the term "witnesses" encompasses those who bear testimony, the Confrontation Clause governs only testimonial statements.(fn39) If a hearsay statement is nontestimonial, the Confrontation Clause does not apply, and the statement will be admitted if governing hearsay law permits its introduction.(fn40) On the other hand, if a statement is testimonial, the Sixth Amendment requires either (1) opportunity for cross-examination of the hearsay declarant in court, or (2) in the case of a declarant who is unavailable to testify, some prior opportunity for cross-examination of that declarant.(fn41) Once actual confrontation is assured, governing hearsay law determines whether the testimonial statement is admissible.(fn42) Even testimonial statements may be admitted in the absence of confrontation under two Founding-era exceptions, which will be addressed in Part IV.
Under this framework, when a prosecutor seeks to admit a hearsay statement against a criminal defendant, a court must first determine whether the statement is testimonial or nontestimonial.(fn43) While Crawford did not provide a comprehensive definition of testimonial, the...
