High
Court announces new Confrontation Clause
By
Scott Lewis
Special to Wisconsin Law Journal
March
17, 2004
In
1603 Sir Walter Raleigh was tried and condemned to death for treason. A substantial
part of the evidence against him was derived from a letter and unsworn out-of-court
testimony attributed to an alleged accomplice, Lord Cobham. Raleigh demanded Cobham’s
presence so that Raleigh could confront and cross-examine him. The judges refused.
More
than 400 years later, Raleigh’s trial played a large part in a U. S. Supreme
Court decision overturning a 24-year-old precedent and creating a new test for
the Sixth Amendment’s Confrontation Clause. The case is Crawford v. Washington,
2004 WL 413301, decided March 8.
Michael
Crawford stabbed Kenneth Lee, ostensibly during an argument over whether Lee had
sexually assaulted Crawford’s wife, Sylvia. Police interviewed both Crawford
and Sylvia. During the first interview, they seemed to corroborate each other’s
story. However, when interviewed a second time and separately, Sylvia’s account
differed on whether her husband had acted in self-defense in stabbing Lee.
Crawford
was charged with assault and attempted murder. He invoked Washington state’s
marital privilege, thereby preventing his wife from testifying at his trial.
The
prosecution still was able to get the tape recorded second interview into evidence
under an exception to the marital privilege which allowed a spouse’s out-of-court
statements into evidence if the statements fell within a hearsay exception. The
trial court ruled that the residual hearsay exception applied, namely, that the
statement bore enough indicia of trustworthiness to be admitted notwithstanding
that it did not fall within a specific hearsay exception. Crawford was convicted
of assault while armed with a deadly weapon.
The
Washington Court of Appeals reversed, holding that Sylvia’s statement was
not reliable enough to be admissible. On the other hand, the Washington Supreme
Court utilized the statement against penal interest exception to the hearsay rule
and the fact that her statements were closely “interlocked” with her
husband, the defendant’s, statements. The Washington high court cited to
Ohio v. Roberts, 448 U. S. 56, 66 (1980), which held that the Confrontation Clause
is satisfied if: 1) the witness is unavailable, and 2) the witness’s hearsay
statement bears “particularized guarantees of trustworthiness” or falls
within a “firmly rooted hearsay exception.” The court admitted the statement
and affirmed the conviction.
The
United States Supreme Court reversed. Justice Antonin Scalia, writing for a divided
(7-2) court, held that Sylvia’s statement was not properly admitted into
evidence. He announced a new Confrontation Clause rule, consistent with the “Framers’
understanding: Testimonial statements of witnesses absent from trial have been
admitted only where the declarant is unavailable, and only where the defendant
has had a prior opportunity to cross-examine.” (Emphasis added.) Chief Justice
William Rehnquist and Justice Sandra Day O’Connor concurred in the judgment,
but dissented from the new rule.
| What
the court held Case:
Crawford v. Washington, No. 02-9410 Issue:
Does admission of testimonial hearsay statements by unavailable witnesses violate
the Confrontation Clause, if there was no prior opportunity for cross-examination? Holding:
Yes. Where testimonial statements are at issue, the only indicium of reliability
sufficient to satisfy constitutional demands is the opportunity for cross-examination. |
Scalia
began by tracing the historical development of the Confrontation Clause. He particularly
emphasized the Sir Walter Raleigh trial as a prime example of the denial of the
right to confront one’s accusers. Raleigh’s case, among others, led
to reforms where a witness could be declared “unavailable” only if “demonstrably
unable to testify in person.” Raleigh’s case also involved another abuse
of court procedure, namely, the practice of reading ex parte examinations in court
as evidence. Scalia had problems with admitting such ex parte evidence even when
a hearsay exception could be identified.
He
commented, “Leaving the regulation of out-of-court statements to the law
of evidence would render the Confrontation Clause powerless to prevent even the
most flagrant inquisitorial practices. Raleigh was, after all, perfectly free
to confront those who read Cobham’s confession in court.”
Scalia
pointed out that it made no difference if the out-of-court “testimony”
offered without the presence of the declarant was under oath or not. Cobham’s
confession was not a sworn statement; indeed, his statement closely resembled
“[s]tatements taken by police officers in the course of interrogations.”
Accordingly, Scalia ruled that statements given to police during questioning are
testimonial for Confrontation Clause purposes.
Scalia
was adamant that a judge should not determine whether testimonial evidence should
be admitted based on “reliability.” The majority opinion then proceeded
to overturn the Roberts decision. Scalia wrote, “The Roberts test allows
a jury to hear evidence, untested by the adversary process, based on a mere judicial
determination of reliability.” Returning to Raleigh, Scalia opined that “the
Raleigh trial itself involved the very sorts of reliability determinations that
Roberts authorizes.
In
the face of Raleigh’s repeated demands for confrontation, the prosecution
responded with many of the arguments a court applying Roberts might invoke today:
that Cobham’s statements were self-inculpatory, …that they were not
made in the heat of passion…and that they were not ‘extracted from [him]
upon any hopes or promise of Pardon.”
Scalia
used a Wisconsin case as an example of how “[r]eliability is an amorphous,
if not entirely subjective, concept.” In State v. Bintz, 2002 WI App 204,
para. 13, the court “found a statement more reliable because the witness
was not in custody and not a suspect.” (Emphasis in original.) He contrasted
Bintz with a Virginia case that went the opposite route and “found a statement
more reliable because the witness was in custody and charged with a crime (thus
making the statement more obviously against her penal interest).”
Scalia
criticized the Virginia case in particular: “To add insult to injury, some
of the courts that admit untested testimonial statements find reliability in the
very factors that make the statements testimonial. As noted earlier, one court
relied on the fact that the witness’s statement was made to police while
in custody on pending charges… .” (Emphasis in original.)
Turning
to Sylvia Crawford’s “testimony” or statements to police, Scalia
pointed out that the judicial uncertainty as to the “reliability” of
her statements amply demonstrated the need to abandon the “reliability”
portion of the Roberts test. (Recall that the trial court and Supreme Court found
her statements “reliable” and admissible for different reasons, whereas
the court of appeals found her statements unreliable.) Scalia added that “no
doubt the courts below were acting in utmost good faith when they found reliability.
The Framers, however, would not have been content to indulge this assumption.
They knew that judges, like other government officials, could not always be trusted
to safeguard the rights of the people. …”
Scalia
conceded that the court simply could have reversed by agreeing that Sylvia’s
testimony was unreliable and left it at that, instead of overruling Roberts. Instead,
he invoked Raleigh’s case once more: “Vague standards are manipulable,
and, while that might be a small concern in run-of-the-mill assault prosecutions
like this one, the Framers had an eye toward politically charged cases like Raleigh’s
— great state trials where the impartiality of even those at the highest
levels of the judiciary might not be so clear.”
The
majority opinion concluded that its decision only applied to testimonial evidence.
“[A]t a minimum,” the term “testimonial” meant “prior
testimony at a preliminary hearing, before a grand jury, or at a former trial;
and to police interrogations.”
The
majority implied that some out-of-court statements might yet be admissible even
though the declarant was unavailable, provided the statements were not “testimonial”
in nature. In his opinion concurring in the judgment, Rehnquist takes this to
mean hearsay exceptions such as “business records and official records.”
The
Chief Justice opined that “[t]o hold otherwise would require numerous additional
witnesses without any apparent gain in the truth-seeking process.”
The
Crawford decision will impact Wisconsin because the Wisconsin Supreme Court has
utilized the Roberts test. State v. Stuart, 2003 WI 73, para. 33; State v. Weed,
2003 WI 85, para. 23. In the Weed case, the murder victim’s statement might
now be inadmissible under the new Crawford test because it had not been subject
to prior cross examination. That is, unless the victim’s statement was not
deemed to be “testimonial.”
The
decision raises an interesting question. If a hypothetical murder victim makes
a dying declaration to police, is it “testimonial” because the police
are questioning the victim, whereas the same declaration is not “testimonial”
if made to a friend? Rehnquist lamented in Crawford, “But the thousands of
federal prosecutors and the tens of thousands of state prosecutors need answers
as to what beyond the specific kinds of ‘testimony’ the court lists…is
covered by the new rule. They need them now, not months or years from now.”
The Stuart
case illustrates a more problematic situation. In Stuart, the state sought to
use the defendant’s brother’s preliminary hearing testimony against
him at trial after the brother took the Fifth Amendment at trial (thereby making
him “unavailable” as a witness). The Crawford decision clearly lists
testimony at a preliminary hearing as falling within the purview of “testimonial”
evidence. The defendant in Stuart was able to cross examine his brother at the
preliminary hearing. That would seem to satisfy the Crawford test. However, at
the preliminary hearing, the defendant’s ability to fully cross examine his
brother was limited by a court ruling and the scope of testimony allowed at a
preliminary hearing. 2003 WI 73, at para. 38-39. So, does the Crawford case allow
evidence to come in from a preliminary hearing only as to that testimony upon
which cross examination has been permitted or actually commenced?
The
only viable solution, at least for now, may be found in Rehnquist’s reading
of footnote 1 of the majority opinion, which Rehnquist interprets as an “implicit
recognition that the mistaken application of its new rule by courts which guess
wrong as to the scope of the rule is subject to harmless-error analysis.”
Scott
Lewis, of the Racine city attorney's office, is a former police legal advisor
and former public defender.
In
addition to his J. D., he holds a Masters of Science in Criminal Justice degree
from the University of Alabama, Tuscaloosa.
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