The Confrontation Clause of the Sixth Amendment, made binding on the states by the Fourteenth Amendment, guarantees that in all criminal prosecutions, the accused shall have the right to “be confronted with the witnesses against him.” This procedural guarantee—of the right to face one’s accusers—generally requires that a defendant has the opportunity to cross-examine witnesses. Questions about the limits of the Confrontation Clause’s protection arise, however, when witnesses are unavailable for cross-examination.
In such cases, prior to 2004, the Confrontation Clause provided little additional protection to the protection already provided by the rules of evidence. In criminal litigation, as enunciated in the U.S. Supreme Court’s decision in Ohio v. Roberts, 448 U.S. 56 (1980), “reliability” was the touchstone of Confrontation Clause evaluations. Statements for which defendants did not have an opportunity for cross-examination would nonetheless be admissible if they met one of the hearsay rules’ exceptions or otherwise bore indicia of trustworthiness or reliability.
Almost a quarter of a century later, in 2004, and again in 2006, the Supreme Court revisited the Confrontation Clause and, rejecting reliability, began developing a new bright-line inquiry focusing solely on whether the statements were testimonial or non-testimonial. These decisions—Crawford v. Washington, 541 U.S. 36 (2004), and Davis v. Washington, 547 U.S. 813 (2006) (decided jointly with Hammon v. Indiana, 547 U.S. 813 (2006))—suggested a judicial revival of the Confrontation Clause. Justice Scalia, writing for the Court in both opinions, emphasized that the Confrontation Clause stood as an independent guarantee separate from the rules of evidence and promised greater predictability with the Court’s new approach.
In contrast to the Court’s promises in 2004 and 2006, the recent Supreme Court decision in Michigan v. Bryant, No. 09-150, 131 S. Ct. 1143 (Feb. 28, 2011), appears to stand as a setback to judicial efforts to provide greater predictability and differentiate the Confrontation Clause from the rules of evidence. With its renewed references to reliability, Bryant reopens the question of whether reliability is relevant to constitutional evaluations of testimony under the Confrontation Clause. And with the Bryant Court’s employment of a multifactorial evaluation, Confrontation Clause jurisprudence again becomes significantly more malleable and outcome oriented.
The consequences of Bryant for criminal defendants are considerable. Under Bryant, if faced with unavailable witnesses, defendants will be left arguing over what are considered non-testimonial statements, especially in the context of “ongoing emergencies.” Multiple factors— including the formality of the interrogation during which a statement is made, the use of a weapon, the private nature of the dispute, the existence of an ongoing emergency, and the actions and statements of both the witness and interrogator—must be examined. Defendants will face the possibility that any witness statements made to first responders, including police officers, medical responders, or 911 operators—until such time that the defendant is apprehended, or at least his or her motive, identity, and location are learned—could be considered non-testimonial. Moreover, defendants will need to assume knowledge of both the witness’s perspective and motives in making his or her statements and the first responders’ motives and perspective in taking such a statement. In any given case, the defendant may need to argue that either the primary purpose of the witness, in making the statement, or the first responder, in taking the statement, is paramount to the evaluation regarding what is testimonial.