Sherry F. Colb

The Right of Confrontation: A Supreme Court Decision Reveals Strong Schisms

By SHERRY F. COLB
Thursday, July 2, 2009

Last week, the U.S. Supreme Court handed down its decision in Melendez-Diaz v. Massachusetts. The Court held that the prosecution may not introduce into evidence a sworn certificate showing the results of forensic analysis (specifically, the fact that a seized substance was cocaine) without triggering the defendant's Sixth Amendment right to confront the witnesses against him. This holding means that if the analyst who certified forensic test results will not appear at trial, then the trial court must exclude the certificate.

Though Justice Scalia's majority opinion expressed great confidence in this result, the dissenting opinion (which reflected the views of four Justices) was equally disdainful of it. The combination of the two exposes a startling lack of consensus among the Justices about the constitutional status of hearsay, a basic feature of interpreting a core protection in the Bill of Rights.

The Problem

The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right [among other things] [t]o be confronted with the witnesses against him." Two questions arise from this text: What is involved in being confronted? And, who counts as a "witness against" the defendant? The second question is the one that most occupied the majority's attention in the Court's recent decision.

No one seems to dispute that the category of witnesses that trigger confrontation rights includes, at the very least, the people who testify for the prosecution at a defendant's criminal trial. And for such witnesses, confrontation means availability for cross-examination. Thus, the defendant has a right to cross-examine every prosecution witness who appears at trial. If a witness dies of natural causes after testifying against the defendant, but before being subject to cross-examination, then the judge must (at a minimum) instruct the jury to disregard that witness's testimony. And if the testimony is necessary to prove guilt beyond a reasonable doubt, then the case must be dismissed.

But does anything or anyone else (aside from witnesses who testify for the prosecution at a criminal trial) count as "witnesses against" the defendant for Confrontation Clause purposes? One controversial possibility is that when the prosecution offers hearsay against the defendant, the speakers of such hearsay are always and necessarily "witnesses against" the defendant and must therefore also be subject to cross-examination by the defense, just as they would be if they had appeared as live witnesses.

For the uninitiated, hearsay is an out-of-court statement offered into evidence to prove the truth of what the statement asserts. In other words, a party offers the statement as a descriptively-accurate account of the reality that the statement describes. For example, suppose that I, the prosecutor in People v. Defendant, put on a witness (named "Witness") to testify, "Jane told me about seeing Defendant kill the victim." If my purpose in calling Witness is to prove that Defendant did kill the victim, just as the out-of-court speaker Jane claimed, then I am offering hearsay evidence.

When a lawyer introduces hearsay evidence, it is possible to characterize the declarants – that is, the people who uttered the out-of-court statements that are now offered as true – as "witnesses" against the defendant. After all, the prosecutor is presenting these out-of-court speakers as worthy of belief by having their words repeated in court for the jury's consideration. Indeed, the 1603 case of Sir Walter Raleigh – an outrage that was said to have motivated the creation of the confrontation right – involved the trial and conviction of Raleigh for treason against the crown on the basis of the words of an out-of-court declarant, whom Raleigh had no opportunity to cross-examine.

Raleigh's paradigmatic case of what a Confrontation Clause violation looks like thus did not concern a live witness appearing in a courtroom to testify for the prosecution. It instead involved the repetition of hearsay in which an out-of-court declarant pointed a finger at the defendant.

What Categories of Hearsay Count?

One thing that has followed from the Raleigh case is an understanding – consistent over time – that the Sixth Amendment bars the prosecution from offering at least some hearsay without the defendant having an opportunity to cross-examine the declarant (the person whose out-of-court statement is introduced).

Or, to put it another way, some hearsay declarants qualify as "witnesses against" the defendant for Sixth Amendment purposes, and no Justice on the Court disputes that. The hard question is which hearsay declarants, in particular, so qualify?

One view, held by the Supreme Court between 1980 and 2004, was that hearsay generally would implicate the Sixth Amendment right of confrontation, if it were offered against the defendant, but that in many circumstances, the hearsay would pass constitutional muster without anyone's subjecting the declarant to cross-examination.

In Ohio v. Roberts, the Court took the position that although hearsay implicated the Sixth Amendment, the defendant would not be entitled to cross-examination if the hearsay was sufficiently trustworthy and reliable. The Court reasoned that the purpose of confrontation is to expose untrustworthy or unreliable statements and therefore, inherently trustworthy statements did not necessarily need to be cross-examined.

The Justices indicated a willingness to presume that hearsay was inherently reliable for Confrontation Clause purposes if it fell within a "firmly rooted" hearsay exception, the survival of which would show that the exception had withstood the test of time, thus demonstrating the inherent trustworthiness of the hearsay. If hearsay did not fall within a "firmly rooted" exception, on the other hand, then a defendant would have to prove that the statement was inherently trustworthy by invoking circumstances surrounding the making of the statement that would reduce or eliminate the speaker's incentive to fabricate or his or her vulnerability to errors (of perception, memory, or communication).

If the prosecutor could persuasively present such surrounding circumstances, then even hearsay that did not fit a firmly-rooted exception could come into evidence against the defendant without violating the Constitution. One difficulty that courts faced under the Roberts regime, then, was determining what would or would not "count" as the sorts of circumstances that would make a statement inherently trustworthy.

In Idaho v. Wright, for example, the Court fractured over whether the existence of evidence corroborating an out-of-court statement qualified as surrounding circumstances supporting the trustworthiness of the statement, with a bare majority holding that it did not.

Though assessing circumstantial guarantees of trustworthiness was challenging, the Roberts approach was generally workable, because so much of the evidence offered and admitted against a criminal defendant did fall within a "firmly rooted" exception. And when hearsay statements fell outside the rubric of such exceptions, courts would ordinarily exclude them under either the federal or the state hearsay rule, thus obviating the need to address the Sixth Amendment question.

The potential Sixth Amendment confrontation problem would therefore arise only when either a "new" hearsay exception emerged (such as for child victims of sexual abuse) or when no precise exception applied and a prosecutor invoked the "catchall" or "residual" provision (which typically admits hearsay that fits no enumerated exception but is otherwise highly reliable).

Indeed, the facts of Idaho v. Wright presented such a case, in which a defendant was charged with sexual abuse, and the trial court admitted an older sibling's statements (about the younger sibling's abuse) to a doctor under the Idaho version of the residual hearsay provision.

After twenty-four years under the Roberts approach, however, the Court changed course in Crawford v. Washington. Justice Scalia wrote for the Court that the right of confrontation should be rooted in constitutional text and history rather than in what are inherently subjective and arbitrary judicial assessments of "reliability." In Crawford, the Court departed from, and ultimately discarded, the Roberts approach and substituted both a broader and narrower conception of what it would mean for a defendant to have the right to be confronted with the witnesses against him.

Crawford, Davis v. Washington, and Hammon v. Indiana

In Crawford, the prosecution offered in evidence a non-testifying wife's recorded responses to police interrogation against her husband, who was on trial for murder. Though the lower courts had applied the Roberts test to the wife's statements (by asking whether there were circumstantial guarantees of trustworthiness surrounding her utterances), the Supreme Court rejected that question and replaced it with a new approach.

Specifically, the Court held that the right question to ask in applying the Confrontation Clause was whether the wife's statements to police were "testimonial" in the sense that they were gathered with the aim of preserving evidence for later prosecution.

Finding that the answer to this question was yes, the Court concluded that the defendant had a right to cross-examine his wife, a right that he was unable to exercise because his wife did not take the witness stand. Because it ruled that he had suffered this violation of his right of confrontation, the Court reversed his conviction.

The Court said, further, that most hearsay is not testimonial at all (because it was not intended by either speaker or questioner to preserve evidence for a future prosecution). When hearsay is testimonial, however, it triggers a right of confrontation, no matter how apparently trustworthy it might be, based on surrounding circumstances or other indicia of reliability. Forgoing confrontation because evidence is clearly reliable, the Court later suggested, is like forgoing a criminal trial because the defendant is clearly guilty.

By identifying "testimonial" hearsay statements as the core of what triggers a confrontation right, the Supreme Court decided in Crawford to define "witnesses" relatively narrowly but also to demand nothing less than a real opportunity for cross-examination in the presence of such witnesses.

One could describe this approach as a compromise. While Roberts defined the universe of witnesses broadly, it did not require very much of prosecutors when that definition applied. Crawford, on the other hand, considerably narrowed the category of witnesses subject to confrontation but demanded much more of prosecutors with respect to that category. It was perhaps this feature of the opinion that drew so many Justices (seven) to sign on, with only two (Chief Justice Rehnquist and Justice O'Connor) concurring in the judgment and arguing that the Court should have retained the Roberts approach and reached the same outcome on that ground.

One apparent benefit of the new approach was that it was going to move the courts away from the subjective and unpredictable judgments about reliability that had characterized Roberts and start fresh with a predictable cross-examination requirement for all testimonial hearsay (possibly with some exceptions recognized at common law). In Davis v. Washington and Hammon v. Indiana, two companion cases decided in 2006 (two years after Crawford), the near-unanimity continued, seemingly confirming the wisdom and practicality of the new regime.

In Davis, the Court held unanimously that a battered woman's words to a 911 operator, intended primarily to get the victim help in an emergency, did not qualify as testimonial and therefore could be admitted into evidence against the batterer without any opportunity for cross-examination. In Hammon, the Court ruled 8-1 (with only Justice Thomas dissenting) that a post-battery one-on-one discussion between a domestic violence victim and a police officer at the crime scene did qualify as testimonial – because it was primarily directed at preserving evidence – and therefore should not have been admitted at the defendant's trial.

How Melendez-Diaz Complicates Matters

The apparent simplicity of Crawford and its progeny might, however, prove to have been illusory. Whatever uncertainty was resolved by requiring actual cross-examination (rather than circumstantial guarantees of trustworthiness) could simply shift elsewhere. Specifically, it could complicate the previously-simple question of what hearsay would trigger the confrontation right in the first place. Melendez-Diaz – the Court's recent decision on this issue – might thus turn out to be Exhibit A in the case against Crawford.

In Melendez-Diaz, only five Justices took the majority position that sworn scientific certificates qualify as testimonial for Sixth Amendment purposes. One of the five Justices, moreover, was Justice Thomas, who had dissented in Hammon, and who continues to view the category of "witnesses" as including "extrajudicial statements only insofar as they are contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions." This is a position that puts Justice Thomas at odds with Justice Scalia, the author of Crawford, who believes that the statement’s formality is less important than the foreseeability of its future use as evidence in a criminal trial. And another of the five in the majority was Justice Souter, who is retiring from the Court.

Perhaps even more significant than the 5-4 lineup is the apparent distaste with which the four dissenting Justices use the word "testimonial," previously the touchstone of what would and would not trigger confrontation rights under Crawford. Consider the following two quotations from the dissent: "Because the Court is driven by nothing more than a wooden application of the Crawford and Davis definition of 'testimonial,' divorced from any guidance from history, precedent, or common sense, there is no way to predict the future applications of today's holding. Surely part of the justification for the Court's formalism must lie in its predictability. There is nothing predictable, here, however, other than the uncertainty and disruption that now must ensue."; and, "The facts of this case illustrate the formalistic and pointless nature of the Court's reading of the Clause."

The dissent takes the position that the word "witness" in the Confrontation Clause refers to an "ordinary" or "typical" witness who has personal knowledge of the crime (unlike a repeat-player scientific analyst, who probably has no recollection of a particular bag of drugs analyzed). Though several of the dissenters (Justices Kennedy and Breyer) joined in the "testimonial" approach of Crawford and Davis, they appear to have grown disaffected in just four years' time and now, they find the approach (as developed by the majority) "formalistic," "wooden," "pointless," and unpredictable.

The days of Crawford are perhaps numbered. Those who sought predictability and practicality are no longer finding it, and those who swore allegiance to originalist understandings of the confrontation right do not agree with one another on what such understandings reveal. Ultimately, the recent evolution of the Confrontation Clause may provide a cautionary tale about discarding an old, if imperfect, system in favor of an apparently fresh, new, and uncomplicated regime.

Sherry F. Colb, a FindLaw columnist, is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her book, When Sex Counts: Making Babies and Making Law, is available on Amazon.

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