Right to Confront Adverse Witnesses: Current Doctrine
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
In Ohio v. Roberts ,1 a Court majority adopted a reliability test for satisfying the confrontation requirement through use of a statement by an unavailable witness.2 Over the course of 24 years, Roberts was applied, narrowed,3 and finally overruled in Crawford v. Washington .4 The Court in Crawford rejected reliance on “particularized guarantees of trustworthiness” as inconsistent with the requirements of the Confrontation Clause. The Clause “commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” 5 Reliability is an “amorphous” concept that is “manipulable,” and the Roberts test had been applied “to admit core testimonial statements that the Confrontation Clause plainly meant to exclude.” 6 “Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.” 7
Crawford represented a decisive turning point by clearly stating the basic principles to be used in Confrontation Clause analysis. “Testimonial evidence” may be admitted against a criminal defendant only if the declarant is available for cross-examination at trial, or, if the declarant is unavailable (and the government has made reasonable efforts to procure his presence), the defendant has had a prior opportunity to cross-examine as to the content of the statement.8 What statements are “testimonial” ? In Crawford , the Court wrote: “Various formulations of this core class of testimonial statements exist: 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 reasonably expect to be used prosecutorially; extrajudicial statements . . . contained in formalized testimonial material, such as affidavits, depositions, prior testimony, or confessions; statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” 9 The Court added that it would “leave for another day any effort to spell out a comprehensive definition of 'testimonial,'” but, “[w]hatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” 10
The Court subsequently concluded that “little more than the application of our holding in Crawford v. Washington ” was needed to find that “affidavits reporting the results of forensic analysis which showed that material seized by the police and connected to the defendant was cocaine” were subject to the right of confrontation. The Court found that the analysts were required to testify in person even though state law declared their affidavits “prima facie evidence of the composition, quality, and the net weight of the narcotic . . . analyzed.” 11 Further, where such testimony is required, the prosecution may not use a “surrogate” witness who, although familiar with the mechanics of forensic testing, had not signed the certification or personally performed or observed the performance of the test. Such a surrogate could not speak to concerns about the integrity of testing procedures or to questions about the performance of the certifying analyst.12 A year after this apparently straightforward holding in Bullcoming v. New Mexico , however, the Court's guidance on trial consideration of forensic reports was clouded by Williams v. Illinois .13 In Williams , an expert witness (not a surrogate witness from the testing lab) testified that a DNA profile she had prepared from the defendant's blood matched a DNA profile reported by an outside lab from a swab of a rape victim. A four-Justice plurality held that the expert incorporated the lab's report in her testimony in a way not intended to prove that the outside lab had in fact tested a swab from a particular rape victim and come up with the defendant's DNA profile, but rather in a way solely intended to establish a basis for the expert's opinion that two DNA profiles matched. Four dissenters vigorously asserted the contrary, finding that the outside lab's report served the purpose of incriminating the defendant directly because it identified the rape victim as the source of the material the lab profiled. The expert's testimony effectively was used to connect the defendant with a named individual and not just his DNA profile with a DNA sample obtained from some unnamed source. Accordingly, the dissent asserted the Confrontation Clause required that the defendant have an opportunity to examine the lab technicians responsible for the report. The ninth Justice in the case, Justice Thomas, agreed the report was directly incriminating because the expert expressly used it to link her profile of the defendant's DNA to the rape victim. Nevertheless, Justice Thomas concurred in judgment of the plurality, reprising his opinion stated in earlier cases14 that the Confrontation Clause covers only formalized statements of a solemnity that the uncertified lab report in this case lacked.
Generally, the only exceptions to the right of confrontation that the Court has acknowledged are the two that existed under common law at the time of the founding: “declarations made by a speaker who was both on the brink of death and aware that he was dying,” and “statements of a witness who was 'detained' or 'kept away' by the 'means or procurement' of the defendant.” 15 The second of these exceptions applies “only when the defendant engaged in conduct designed to prevent the witness from testifying.” 16 Thus, in a trial for murder, the question arose whether statements made by the victim to a police officer three weeks before she was murdered, that the defendant had threatened her, could be admitted. The state court had admitted them on the basis that the defendant's having murdered the victim had made the victim unavailable to testify, but the Supreme Court reversed, holding that, unless the testimony had been confronted or fell within the dying declaration exception, it could not be admitted “on the basis of a prior judicial assessment that the defendant is guilty as charged,” for to admit it on that basis it would “not sit well with the right to trial by jury.” 17
In Davis v. Washington ,18 the Court began to explore the parameters of Crawford by considering when a police interrogation is “testimonial” for purposes of the Confrontation Clause. Davis involved a 911 call in which a woman described being assaulted by a former boyfriend. A tape of that call was admitted as evidence of a felony violation of a domestic no-contact order, despite the fact that the woman in question did not testify. Although again declining to establish all the parameters of when a response to police interrogation is testimonial, the Court held that statements to the police are nontestimonial when made under circumstances that “objectively indicat[e] that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.” 19 Statements made after such an emergency has ended, however, would be treated as testimonial and could not be introduced into evidence.20
In Michigan v. Bryant ,21 however, the Court appeared to extend the scope and basis of the “ongoing emergency” exception. In Bryant , a man dying from a gun shot wound was found by police lying on the ground next to his car in a gas station parking lot, several blocks away from where he had been shot. In response to questions from several police officers, the victim identified the defendant as his assailant, and his response was later used in the defendant's trial despite the victim's unavailability to testify. In determining whether such statements were related to an ongoing emergency (and thus were non-testimonial), the majority noted that an objective analysis of this question was “highly context-dependent” ,22 and depended on the nature of the crime, the weapon utilized, the medical condition of the victim, and the formality of the setting. Further, in determining the testimonial nature of such information, the Court considered not just the intent of the declarant, but also the intentions of the police coming upon the crime scene who, ignorant of preceding events, began seeking information to decide whether there was a continuing danger to the victim or the public.23 Considering that there are other potential exceptions to the Confrontation Clause where the “primary purpose” for creation of evidence is not related to gathering evidence for trial,24 the breadth of this opinion may signal a retreat from the limits of Crawford .
The Court continued its shift away from a broader reading of Crawford in Ohio v. Clark ,25 a case that held that the Confrontation Clause did not bar the introduction of statements that a child made to his preschool teacher regarding abuse committed by the defendant.26 To reach its holding, the Court, relying on a multi-factor approach to the primary purpose test similar to Bryant , noted that the statements in question (1) occurred in the context of an ongoing emergency involving suspected child abuse; (2) were made by a very young child, who did not intend his statements to be a substitute for trial testimony; (3) historically were admissible at common law; and (4) were not made to law enforcement officers.27 In so holding, the Court appeared to lessen the importance of the primary purpose test, concluding that the primary purpose test is a “necessary, but not always sufficient, condition” for the exclusion of out-of-court statements under the Sixth Amendment, as evidence that satisfies the primary purpose test may still be presented at trial if the evidence would have been admissible at the time of the founding.28
In two pre- Crawford cases, the Court took contrasting approaches to the Confrontation Clause regarding state efforts to protect a child from psychological trauma while testifying. In Coy v. Iowa ,29 the Court held that the right of confrontation is violated by a procedure, authorized by statute, placing a one-way screen between complaining child witnesses and the defendant, thereby sparing the witnesses from viewing the defendant. This conclusion was reached even though the witnesses could be viewed by the defendant’s counsel and by the judge and jury, even though the right of cross-examination was in no way limited, and even though the state asserted a strong interest in protecting child sex-abuse victims from further trauma.30 The Court’s opinion by Justice Scalia declared that a defendant’s right during his trial to face-to-face confrontation with his accusers derives from “the irreducible literal meaning of the clause,” and traces “to the beginnings of Western legal culture.” 31 Squarely rejecting the Wigmore view “that the only essential interest preserved by the right was cross-examination,” 32 the Court emphasized the importance of face-to-face confrontation in eliciting truthful testimony.
Coy ’s interpretation of the Confrontation Clause, though not its result, was rejected in Maryland v. Craig .33 In Craig , the Court upheld Maryland’s use of one-way, closed circuit television to protect a child witness in a sex crime from viewing the defendant. As in Coy , procedural protections other than confrontation were afforded: the child witness must testify under oath, is subject to cross examination, and is viewed by the judge, jury, and defendant. The critical factual difference between the two cases was that Maryland required a case-specific finding that the child witness would be traumatized by presence of the defendant, while the Iowa procedures struck down in Coy rested on a statutory presumption of trauma. But the difference in approach is explained by the fact that Justice O’Connor’s views, expressed in a concurring opinion in Coy , became the opinion of the Court in Craig .34 Beginning with the proposition that the Confrontation Clause does not, as evidenced by hearsay exceptions, grant an absolute right to face-to-face confrontation, the Court in Craig described the clause as “reflect[ing] a preference for face-to-face confrontation.” 35 This preference can be overcome “only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.” 36 Relying on the traditional and “transcendent” state interest in protecting the welfare of children, on the significant number of state laws designed to protect child witnesses, and on “the growing body of academic literature documenting the psychological trauma suffered by child abuse victims,” 37 the Court found a state interest sufficiently important to outweigh a defendant’s right to face-to-face confrontation. Reliability of the testimony was assured by the “rigorous adversarial testing [that] preserves the essence of effective confrontation.” 38 All of this, of course, would have led to a different result in Coy as well, but Coy was distinguished with the caveat that “[t]he requisite finding of necessity must of course be a case-specific one” ; Maryland’s required finding that a child witness would suffer “serious emotional distress” if not protected was clearly adequate for this purpose.39
In another case involving child sex crime victims, the Court held that there is no right of face-to-face confrontation at an in-chambers hearing to determine the competency of a child victim to testify, because the defendant’s attorney participated in the hearing, and because the procedures allowed “full and effective” opportunity to cross-examine the witness at trial and request reconsideration of the competency ruling.40 And there is no absolute right to confront witnesses with relevant evidence impeaching those witnesses; failure to comply with a rape shield law’s notice requirement can validly preclude introduction of evidence relating to a witness’s prior sexual history.41
- 448 U.S. 56 (1980). The witness was absent from home and her parents testified they did not know where she was or how to get in touch with her. The state’s sole effort to locate her was to deliver a series of subpoenas to her parents’ home. Over the objection of three dissenters, the Court held this to be an adequate basis to demonstrate her unavailability. Id. at 74–77.
- “[O]nce a witness is shown to be unavailable . . . , the Clause countenances only hearsay marked with such trustworthiness that ‘there is no material departure from the reason of the general rule.’” 448 U.S. at 65 (quoting Snyder v. Massachusetts, 291 U.S. 97, 107 (1934)). The Court indicated that reliability could be inferred without more if the evidence falls within a firmly rooted hearsay exception.
- Applying Roberts , the Court held that the fact that defendant’s and codefendant’s confessions “interlocked” on a number of points was not a sufficient indicium of reliability, since the confessions diverged on the critical issues of the respective roles of the two defendants. Lee v. Illinois, 476 U.S. 530 (1986). Roberts was narrowed in United States v. Inadi, 475 U.S. 387 (1986), which held that the rule of “necessity” is confined to use of testimony from a prior judicial proceeding, and is inapplicable to co-conspirators’ out-of-court statements. See also White v. Illinois, 502 U.S. 346, 357 (1992) (holding admissible “evidence embraced within such firmly rooted exceptions to the hearsay rule as those for spontaneous declarations and statements made for medical treatment” ); and Idaho v. Wright, 497 U.S. 805, 822–23 (1990) (insufficient evidence of trustworthiness of statements made by child sex crime victim to her pediatrician; statements were admitted under a “residual” hearsay exception rather than under a firmly rooted exception).
- 541 U.S. 36 (2004).
- 541 U.S. at 60–61.
- 541 U.S. at 63.
- 541 U.S. at 68–69.
- 541 U.S. at 54, 59.
- 541 U.S. at 51–2 (internal quotation marks and citations omitted), quoted with approval in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309–10 (2009).
- 541 U.S. at 68.
- Melendez-Diaz v. Massachusetts, 557 U.S. 305, 307, 309, 329 (2009).
- Bullcoming v. New Mexico, 564 U.S. 647, 661–62 (2011).
- 567 U.S. 50 (2012).
- See, e.g., Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) (Justice Thomas concurring).
- Giles v. California, 128 S. Ct. 2678, 2682, 2683 (2008).
- 128 S. Ct. at 2683.
- 128 S. Ct. at 2686.
- 547 U.S. 813 (2006).
- 547 U.S. at 822.
- 547 U.S. at 828–29. Thus, where police responding to a domestic violence report interrogated a woman in the living room while her husband was being questioned in the kitchen, there was no present threat to the woman, so such information as was solicited was testimonial. Id. at 830 (facts of Hammon v. Indiana , considered together with Davis .)
- 562 U.S. 344 (2011). Justice Sotomayor wrote the majority opinion, joined by Chief Justice Roberts and Justices Kennedy, Breyer and Alito. Justice Thomas file an opinion concurring in judgment, while Justices Scalia and Ginsburg filed dissenting opinions. Justice Kagan did not participate in the case.
- Id. at 363.
- Id. at 367.
- See 547 U.S. at 362 n.9. The Court noted that many exceptions to hearsay rules rest on the belief that certain statements are made for a purpose other than use in a prosecution, see, e.g., Fed. Rule Evid. 801(d)(2)(E) (statement by a co-conspirator during and in furtherance of the conspiracy); 803(4) (Statements for Purposes of Medical Diagnosis or Treatment); 803(6) (Records of Regularly Conducted Activity); 803(8) (Public Records and Reports); 803(9) (Records of Vital Statistics); 803(11) (Records of Religious Organizations); 803(12) (Marriage, Baptismal, and Similar Certificates); 803(13) (Family Records); and 804(b)(3) (Statement Against Interest).
- See 135 S. Ct. 2173 (2015).
- Id. at 2177.
- Id. at 2181–82.
- Id. at 2180–81.
- 487 U.S. 1012 (1988).
- On this latter point, the Court indicated that only “individualized findings,” rather than statutory presumption, could suffice to create an exception to the rule. 487 U.S. at 1021.
- 487 U.S. at 1015, 1021.
- 487 U.S. at 1018 n.2.
- 497 U.S. 836 (1990).
- Coy was decided by a 6-2 vote. Justice Scalia’s opinion of the Court was joined by Justices Brennan, White, Marshall, Stevens, and O’Connor; Justice O’Connor’s separate concurring opinion was joined by Justice White; Justice Blackmun’s dissenting opinion was joined by Chief Justice Rehnquist; and Justice Kennedy did not participate. In Craig , a 5-4 decision, Justice O’Connor’s opinion of the Court was joined by the two Coy dissenters and by Justices White and Kennedy. Justice Scalia’s dissent was joined by Justices Brennan, Marshall, and Stevens.
- 497 U.S. at 849.
- 497 U.S. at 850. Dissenting Justice Scalia objected that face-to-face confrontation “is not a preference ‘reflected’ by the Confrontation Clause [but rather] a constitutional right unqualifiedly guaranteed,” and that the Court “has applied ‘interest-balancing’ analysis where the text of the Constitution simply does not permit it.” Id. at 863, 870.
- 497 U.S. at 855.
- 497 U.S. at 857.
- 497 U.S. at 855.
- Kentucky v. Stincer, 482 U.S. 730, 744 (1987).
- Michigan v. Lucas, 500 U.S. 145 (1991).
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