Criminal Justice Section  


Criminal Justice Magazine
Summer 2005
Volume 20 Issue 2

Crawford: A Look Backward, A Look Forward

By Laird Kirkpatrick

Laird Kirkpatrick is the Philip H. Knight Dean and Hershner Professor of Jurisprudence at the University of Oregon Law School. He is a coauthor of Federal Evidence (2d ed. West), Evidence Under the Rules (5th ed. Aspen), Evidence (3d ed. Aspen), Evidence: Practice Under the Rules (2d ed. Aspen) and the author of Oregon Evidence (4th ed. LexisNexis). He is the former chair of the Evidence Section of the American Association of Law Schools. The author extends his appreciation to Melissa Aubin for her research assistance in the preparation of this article.

Of all issues of constitutional interpretation, one of the most challenging is defining the scope of the Sixth Amendment right of confrontation as applied to hearsay statements offered against criminal defendants. The Sixth Amendment provides: “In all criminal proceedings, the defendant shall enjoy the right . . . to be confronted with the witnesses against him.” There are two possible ways to interpret this clause literally, both of which would lead to unacceptable results. The first is that “witnesses against” does not include hearsay declarants, only witnesses who testify at trial. Such an interpretation would fly in the face of the history of the Sixth Amendment, because it would allow “trial by affidavit,” one of the practices the Confrontation Clause was clearly designed to prevent. The second literal interpretation is that the Confrontation Clause applies to all hearsay declarants and requires they be present at trial. Such an interpretation would impose an unsustainable burden on prosecutors and cause a breakdown of the criminal justice system because hearsay declarants who have provided essential evidence are often unavailable.
The Supreme Court has never adopted either of these literal constructions, but instead has attempted to steer a middle course. In one of the earliest cases interpreting the Confrontation Clause, the defendant claimed that the admission at his second trial of the transcript of testimony by a witness at the first trial, who was by then deceased, violated his right of confrontation. (Mattox v. United States, 156 U.S. 237 (1895).) The Court reached the predictable and appropriate conclusion that the transcript was admissible, but was clearly troubled by the difficulty of reconciling this result with the language of the Confrontation Clause. The Court stated that “general rules of law of this kind, however beneficent in their operation and valuable to the accused, must occasionally give way to considerations of public policy and the necessities of the case.” (Id. at 243.) To grant the defendant’s claim “would be carrying his constitutional protection to an unwarrantable extent” and “the rights of the public shall not be wholly sacrificed in order that an incidental benefit may be preserved in the accused.” (Id.)
The Court was sensitive to the fact that former testimony is clearly “second best” to live testimony where the witness can be cross-examined face-to-face by the defendant in front of the jury that is determining his or her fate, which is the type of confrontation contemplated by the Sixth Amendment. For this reason, the Court has always insisted on a constitutionally adequate showing of unavailability of the declarant before former testimony is allowed, and many of the confrontation cases decided since Mattox have involved the question of how rigorously this unavailability requirement should be enforced. (See, e.g., Barber v. Page, 390 U.S. 719 (1968); Mancusi v. Stubbs, 408 U.S. 204 (1972).)
Former testimony, nonetheless, is superior to most other forms of hearsay because, by definition, it was given at an earlier proceeding where the defendant had the opportunity to confront and cross-examine. The Court has struggled to find a standard to apply to hearsay that has not previously been cross-examined. In Dutton v. Evans, 400 U.S. 74, 89 (1970), the Court approved the admission of uncross-examined hearsay after finding that it had sufficient “indicia of reliability” and that cross-examination would be of marginal utility. This approach raised obvious questions about how reliable the hearsay had to be to meet confrontation standards and whether it was enough that the hearsay satisfied a recognized hearsay exception.

Ohio v. Roberts
In the landmark case of Ohio v. Roberts, 448 U.S. 56 (1980), the Court attempted to synthesize its earlier confrontation jurisprudence and provide more guidance to lower courts. It set forth a two-pronged test in order for hearsay to be admissible against a criminal defendant: (1) the declarant generally must be shown to be unavailable; and (2) the statement must have been made under circumstances providing sufficient “indicia of reliability.” With respect to the second prong, the Court relieved lower courts of the burden of making the reliability determination on a case-by-case basis by stating that it may be assumed that hearsay is sufficiently reliable for constitutional purposes if it satisfies a “firmly rooted” hearsay exception. This meant that lower courts would need to make reliability determinations only for hearsay that was offered under a “catchall” exception, such as Federal Rule of Evidence 807, or under new or nontraditional hearsay exceptions that were not “firmly rooted.”
Roberts was an attempt to strike a pragmatic balance between excluding or admitting hearsay, protecting defendants by requiring indicia of reliability as a substitute for cross-examination, and enforcing the confrontation right to the extent practical by insisting on a showing of declarant unavailability before hearsay could be introduced. A number of states have adopted the Roberts criteria in interpreting their own state confrontation clauses. (See, e.g., State v. Hansen, 312 N.W.2d 96 (Minn. 1981); People v. Sanders, 56 N.Y.2d 51, 451 N.Y.S.2d 30, 436 N.E.2d 480 (1982); State v. Campbell, 299 Or. 633, 705 P.2d 694 (1985).)

Criticisms of Roberts
The Roberts decision has received mixed reviews. Commentators have criticized the reliability standard as too subjective and amorphous, even though “reliability” is certainly not an unfamiliar concept in either criminal law or evidence, and ad hoc judicial determinations of reliability are made in a variety of contexts. Critics have pointed to conflicting reliability determinations among courts considering similar types of hearsay and the lack of uniform criteria for determining what makes a statement sufficiently reliable to satisfy the Confrontation Clause.
Some commentators have also argued that Roberts offers a “toothless” standard, one that rarely protects criminal defendants from the use of uncross-examined hearsay. Certainly a wide range of hearsay satisfying well-established hearsay exceptions is admissible under Roberts, and that was the Court’s intention. But to the extent that the purpose of Roberts was to protect defendants from the admission of new or nontraditional types of hearsay having questionable reliability, it is by no means clear that Roberts has been ineffectual. The Supreme Court itself has applied Roberts to find a confrontation violation in two major cases involving nontraditional hearsay admitted under the catchall exception (Idaho v. Wright, 497 U.S. 805 (1990)) and the exception for statements against penal interest (Lilly v. Virginia, 527 U.S. 116 (1999)), and the reverberations from these holdings have extended to courtrooms across the country. (See, e.g., Christopher B. Mueller, Tales Out of School—Spillover Confessions and Against-Interest Statements Naming Others, 55 U. MIAMI L. REV. 929 (2001).)
It is easy to underestimate the impact of Roberts by looking only at reported cases, which would primarily be cases where the confrontation objection under Roberts was overruled and the defendant appealed. Certainly the vast majority of those rulings, like most trial court rulings, have been affirmed. But what the case law does not reveal is how many times trial judges have applied Roberts to exclude evidence offered by the prosecutor during the course of the trial, because such rulings are generally not subject to appeal and do not become reported cases. It also does not reveal how many times prosecutors refrained from offering evidence because of Roberts. It would take a far more sophisticated empirical study than has yet been done to assess the true exclusionary impact of Roberts.
The most fundamental attack on Roberts has been based on historical and theoretical grounds. A number of distinguished academic commentators, most notably Professor Richard Friedman, have called for a reconceptualization of confrontation jurisprudence that would bring it more in line with its historical roots. (See, e.g., Richard Friedman, Confrontation: The Search for Basic Principles, 86 GEO. L.J. 1011 (1998); Richard Friedman & Bridget McCormick, Dial-In Testimony, 150 U. PA. L. REV. 1171 (2002).) They argued that the right of confrontation should be decoupled from hearsay law and focus on the original concern of the framers of the Sixth Amendment, which was “testimonial” hearsay. Under this view, the role of the Confrontation Clause would be more narrow but more powerful. If hearsay were testimonial in nature, a finding of reliability under Roberts would not be an adequate substitute for cross-examination. Instead, the right of confrontation would be considered an absolute. If a testimonial hearsay statement cannot be cross-examined either before or at trial, it must be excluded.
The solicitor general of the United States in a series of amicus briefs joined these commentators in urging the Supreme Court to adopt a narrower scope for the Confrontation Clause and suggested that it apply only to in-court testimony or its functional equivalent, “such as affidavits, depositions, or confessions that are made in contemplation of legal proceedings.” (See, e.g., White v. Illinois, 502 U.S. 346, 364 (1992).)

Declarations against penal interest
Despite these criticisms and suggested reforms, Roberts remained the controlling standard for almost a quarter of a century. However, a particular type of hearsay—accusatory statements by accomplices to the police admitted as declarations against penal interest—began to put a strain on the Roberts framework. Such cases were particularly troubling to the Court because the history of the Sixth Amendment suggests that it was these types of statements that most concerned its Framers. One example frequently cited as part of the background of the Confrontation Clause is the notorious trial of Sir Walter Raleigh, who was convicted of treason on the basis of uncross-examined, out-of-court accusatory statements, subsequently recanted, made by an alleged accomplice, Lord Cobham, to agents of the Crown. Despite Raleigh’s plea to “call my accuser before my face,” (2 HOW. ST. TR. 1, 15-16 (1603)), the judges refused, and Raleigh was convicted and sentenced to death.
In Lilly v. Virginia, 527 U.S. 116 (1999), the Court reviewed a murder conviction where a central piece of evidence was an accusatory declaration to authorities by an accomplice, the same type of evidence that had been used to convict Raleigh. The Virginia court admitted the statement as a declaration against penal interest, which it held to be a “firmly rooted” hearsay exception under state law. The Supreme Court overturned the conviction, rejecting the conclusion that the declaration against penal interest exception was “firmly rooted” for purposes of confrontation analysis. The plurality opinion stated that far from having “particularized guarantees of trustworthiness,” such statements “are inherently unreliable.” The opinion cautioned the lower courts that “[i]t is highly unlikely that the presumptive unreliability that attaches to accomplices’ confessions that shift or spread blame can be effectively rebutted when the statements are given under the conditions that implicate the core concerns of the old ex parte practice—that is when the government is involved in the statements’ production, and when the statements describe past events and have not been subject to adversarial testing.” (Id. at 137.)
Nonetheless, despite this warning in Lilly, many lower courts continued to admit accomplice statements made to authorities against criminal defendants, finding them to have adequate indicia of reliability. (See Roger Kirst, Appellate Court Answers to the Confrontation Questions in Lilly v. Virginia, 53 SYRACUSE L. REV. 87, 105 (2003) (finding that since Lilly accomplice statements to authorities were admitted in 25 out of 70 cases surveyed).) Perhaps in part out of a sense of frustration, the Supreme Court finally yielded to the calls to adopt a new approach in its confrontation jurisprudence.

Crawford v. Washington
The Court took the opportunity to do so in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), where the Court largely adopted the “testimonial” theory that had been urged by commentators. In a scholarly opinion by Justice Scalia, the Court examined the historical background of the Confrontation Clause and drew two inferences: First, the “principal evil” against which the Confrontation Clause was directed was the use of pretrial ex parte examinations, including affidavits and depositions, as evidence against the accused, and statements gathered by such methods were described by the Court as “testimonial.” The Court set forth several possible definitions of “testimonial” evidence, without endorsing any of them, but held that statements taken by police officers in the course of interrogation “are testimonial even under a narrow standard.” (Id. at 1364.)
The second inference drawn by the Court was that the Framers would not have allowed admission of testimonial hearsay statements unless the declarant “was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” (Id. at 1365.) The opinion overruled Roberts to the extent that it would allow the admission of testimonial hearsay that had not been cross-examined based on a finding of reliability. The Court stated that “[t]he unpardonable vice of the Roberts test . . . is not its unpredictability, but its demonstrated capacity to admit core testimonial statements that the Confrontation Clause plainly meant to exclude.” (Id. at 1371.) The Court found that admitting uncross-examined testimonial statements simply because they were deemed reliable by a judge “is fundamentally at odds with the right of confrontation.” (Id. at 1370.)
Crawford, like Lilly, was a case where an accomplice’s statement to the police had been admitted against the defendant as a declaration against penal interest under a state counterpart to F.R.E. 804(b)(3). However, this time the Court found a confrontation violation not because the exception was not “firmly rooted,” not because the statement was unreliable, but because it was testimonial.
Crawford seems correctly decided in giving enhanced protection to defendants when the hearsay offered against them is testimonial in nature. When a statement is deliberately accusatory, or when the declarant knows that the statement is likely to be used in the prosecution of the defendant for a crime, the need for face-to-face confrontation is at its highest. Human experience affirms that not every statement made behind a person’s back will be made to his or her face. When statements are directly accusatory, there is the greatest need to explore the accuser’s motives. And when the statements were the product of police interrogation, there is a need to ensure that the testimony is not the product of improper coercion or intimidation. There is also important symbolic and moral value in allowing the accused to confront the persons whose testimony may deprive them of years of liberty, if not life itself. As the Court stated in an earlier opinion, “There is something deep in human nature that regards face-to-face confrontation between accused and accuser as ‘essential to a fair trial in a criminal prosecution.’” (Coy v. Iowa, 487 U.S. 1012, 1019 (1988).)

Nontestimonial hearsay
After bifurcating hearsay into testimonial and nontestimonial forms, the Crawford opinion then suggested that nontestimonial hearsay might have no constitutional protection at all. A dictum at the end of the opinion stated: “Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law—as does Roberts—and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether.” (Crawford, 124 S. Ct. at 1374.) This dictum has caused alarm, particularly among the criminal defense bar, for a number of reasons.
First, the Court may ultimately define “testimonial” hearsay very narrowly. Justice Thomas has adopted the extraordinarily constricted view that the Confrontation Clause “is implicated by extrajudicial statements only insofar as they are contained in formalized testimonial material, such as affidavits, depositions, prior testimony, or confessions,” (Lilly v. Virginia, 527 U.S. at 143 (Thomas, J., concurring)), and Justice Scalia joined with him in an earlier opinion when he first proposed this view. (White v. Illinois, 502 U.S. at 358 (1992) (Thomas, J., concurring).) If the Court were ultimately to adopt Justice Thomas’s view, or anything close to it, the majority of hearsay that is currently contested on confrontation grounds would be placed outside the purview of the Sixth Amendment. A recent survey of confrontation decisions since Crawford found that almost one-third that reached the merits held the hearsay statements to be nontestimonial. (Tom Lininger, Prosecuting Batterers After Crawford, 91 VA. L. REV. 102, 120 (2005) (surveying federal and state court opinions applying Crawford from March 8 to December 31, 2004).) That proportion would rise significantly if Justice Thomas’s definition or a similarly narrow definition of “testimonial” were to become the law of the land.
Second, if nontestimonial hearsay were removed from the scope of the Confrontation Clause, legislatures would be free to create new hearsay exceptions for nontestimonial hearsay or rewrite existing ones without concern for the constitutional constraints currently imposed by Roberts. Legislatures have been under considerable pressure in recent years to expand existing hearsay exceptions or create new exceptions to aid the prosecution of certain types of crimes. Most of these new statutory hearsay exceptions have been drafted with an eye on Roberts, which has had the salutary effect of focusing more attention on the issues of reliability and unavailability than might otherwise be the case. (See, e.g., ALA. CODE 15-25-2 (permitting introduction of hearsay statement of child sexual abuse victim, with unavailability and reliability requirements); OR. REV. STAT. 40.460(18a)(d) (special hearsay exception for children and persons with developmental disabilities alleging sexual abuse, containing reliability and unavailability requirements; UNIF. R. EVID. 807 (hearsay exception permitting “inherently trustworthy” declaration of “unavailable” child victim of neglect, physical, or sexual abuse).)

“Witnesses against”
Third, if the Crawford dictum were to become law, the meaning of “witnesses against” under the Sixth Amendment would be entirely redefined. Prior to Crawford, the Supreme Court always assumed that the declarant of a hearsay statement offered against a criminal defendant was a “witness against” the defendant for purposes of confrontation analysis. The only question has been whether the hearsay statement was admissible. If nontestimonial hearsay is held to be exempt from the Confrontation Clause, this would mean that declarants of nontestimonial hearsay would no longer be considered “witnesses against” a criminal defendant for purposes of the Sixth Amendment, no matter how incriminating or damaging their hearsay statements prove to be at trial. Whether a hearsay declarant was a “witness against” would depend solely on whether the statement was testimonial or not.
In support of this proposed reformulation, the Court cited as a definition of “witnesses” those who “bear testimony.” (Crawford, 124 S. Ct. at 1364.) But another equally well-accepted definition is those “who saw or can give a firsthand account of something.” (WEBSTER’S NEW WORLD DICTIONARY (3d ed. 1996); see also United States v. Hubbell, 530 U.S. 27, 50, (2000) Thomas, J., concurring (“witness” means “a person who gives or furnishes evidence.”).) When prosecutors offer as evidence out-of-court statements by declarants fitting the latter description, it is entirely natural to consider them to be “witnesses against” the criminal defendant for purposes of the Sixth Amendment. And that has been the understanding of the Court for more than 100 years prior to Crawford.
This proposed redefinition could lead to strange results, because a finding that a statement is testimonial is not necessarily linked to whether a statement is accusatory or not. Although testimonial hearsay is more likely to be accusatory, and nontestimonial hearsay less likely, there is nothing in the Crawford opinion that compels this result, and it will not always be the case. Thus, a neutral statement obtained by police interrogation (e.g., “Yes, the defendant paid me in cash for his rent last month”) would be considered “testimonial,” given the maximum protection of the Confrontation Clause, and could not be admitted at trial without cross-examination. But a highly accusatory statement made in confidence to a private party (e.g., “That man [the defendant] just offered to sell me drugs”) would be nontestimonial under most definitions and beyond the Sixth Amendment. If the latter statement satisfied a state hearsay exception, such as for present sense impressions, it could be admitted, under the Crawford dictum, against a criminal defendant without cross-examination, without a showing of reliability, and without a showing of inability to produce the declarant at trial.

Need for cross-examination
Finally, in some cases, a criminal defendant may have as much need to cross-examine a nontestimonial hearsay declarant as a testimonial hearsay declarant. For example, assume a murder prosecution where a liquor store owner was shot and killed in his store at 3:02 p.m. Art is driving by the store at exactly 3 p.m. and says to his passenger Will: “There goes Dan into the liquor store to get his afternoon bottle of gin.” At Dan’s murder trial, the prosecutor calls Will and through him offers Art’s statement as a present sense impression to prove that it was Dan who was in the liquor store at the time of the killing. There were no other customers or witnesses, and Art’s statement is the key piece of evidence implicating Dan in the murder. Dan’s attorney would plead that cross-examination of Art about the accuracy of his identification is essential to Dan’s defense, and insist that at a minimum the prosecutor should be required to make a showing of Art’s unavailability. However, if the Crawford dictum becomes law, such claims would no longer be cognizable under the Sixth Amendment, because Art would not be considered a “witness against” Dan (although it might be hard to persuade Dan that this is so). Dan might attempt to assert a due process objection, but the Due Process Clause has had very little force in constraining evidence otherwise admissible under state law. In Maryland v. Craig, 497 U.S. 836, 845 (1990), the Court stated that “[t]he central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.” Such adversarial testing is sometimes needed for nontestimonial hearsay as well.

Originalist interpretation
Justice Scalia’s opinion is a model of originalist interpretation of a constitutional provision. It focuses on the likely intent of the Framers of the Confrontation Clause based on the experiences, practices, and laws of their time, as well as their apparent conception of fairness in court procedures. However, one danger of originalism as a theory of constitutional interpretation is that it may cause a court to focus too much on the specific issues facing the Framers at the expense of their more general underlying concerns. Certainly, in 1791 the primary focus of the Framers was on ex parte examination of witnesses, because that was a practice of the era that had generated controversy. But the most difficult confrontation issues facing courts today were not before the courts in 1791, so it is difficult to know what the common law judges who developed the right of confrontation or the constitutional Framers would have thought of them.
Although there was a “general and settled” acceptance of the hearsay rule as a fundamental part of the law during the 1700s (2 Wigmore, Evidence, § 1364 at 1695 (1904)), its qualifications and exceptions were not fully developed at the time of the founding. (See T. P. Gallanis, The Rise of Modern Evidence Law, 84 IOWA L. REV. 499, 534-35 (1999).) Nonetheless, courts were not allowing as substantive evidence the wide range of hearsay that is routine in courts today, including statements by young children, statements to diagnosing doctors, present sense impressions, declarations against penal interest, or the variety of hearsay offered under the “catchall exception.” At that time there were no 911 calls, rape crisis centers, or child advocates employed to take statements from suspected child abuse victims. There were also no organized police agencies in 1791, although on this point the Court was willing to extrapolate to find statements taken by modern day police officers to be “testimonial” because “police interrogations bear a striking resemblance to examinations by justices of the peace in England.” (Crawford, 124 S. Ct. at 1364.)

Intent of Framers
There actually is surprisingly little material in the historical record indicating the intent of the Framers themselves with respect to the right of confrontation. Justice Scalia himself acknowledged this when he joined an opinion 12 years prior to Crawford that stated “[t]here is virtually no evidence of what the drafters of the Confrontation Clause intended it to mean.” (White v. Illinois, 502 U.S. 346, 359 (1992) (Thomas, J., concurring).) The Court’s exhaustive historical research in the Crawford opinion focused almost entirely on chronicling the evolving practices of English and American courts with respect to ex parte examination of witnesses and exploring how the right of cross-examination came to be recognized for such testimonial statements. It contains only two quotes pertinent to the actual adoption of the Confrontation Clause, neither of which shed any light on its possible application to nontestimonial hearsay. (Crawford, 124 S. Ct. at 1363.) Thus, while the historical record supports the conclusion that testimonial hearsay should be subject to a cross-examination requirement, it does not support a conclusion that the Framers neither had nor would have had concerns about any other form of hearsay. (Cf. id. at 1364 (Rehnquist, C.J., concurring) (“As far as I can tell, unsworn testimonial statements were treated no differently at common law than were nontestimonial statements.”).)
The Crawford opinion repeatedly mentions Sir Walter Raleigh’s trial for treason as an example of the type of unfairness the Framers were trying to prevent. But under modern hearsay law, it is not difficult to imagine ways that Lord Cobham’s statements implicating Raleigh in a conspiracy against the Crown might be offered by the prosecution as arguably nontestimonial hearsay, perhaps as a declaration against penal interest made to his wife or other private party. (See Sanders v. Moore, 156 F. Supp. 2d 1301 (M.D. Fla. 2001) (husband’s statement to his wife that defendant had invited him to join a conspiracy to commit murder was admitted at trial as a declaration against penal interest; court holds that defendant’s right of confrontation was violated under Roberts and grants writ of habeas corpus; statement failed to fit “firmly rooted” hearsay exception and was not supported by particularized guarantees of trustworthiness).) If the prosecutor had found a way to admit Lord Cobham’s incriminating statements as nontestimonial hearsay, it is doubtful that Raleigh’s trial would have been perceived as significantly more fair or that his plea to “call my accuser before my face” would have been beyond the concern of the Framers.

Standard for nontestimonial hearsay
At this time, the Crawford dictum remains only a dictum, and lower courts are continuing to apply Ohio v. Roberts in assessing whether the admission of nontestimonial hearsay has violated a defendant’s right of confrontation. Whether Roberts will continue to be the constitutional standard, or whether there will be any constitutional standard, for nontestimonial hearsay remains to be seen. However, to give lower courts a broader range of options in dealing with nontestimonial hearsay, rather than overruling Roberts, it might be more appropriate for the Court to revisit White v. Illinois, 502 U.S. 346 (1992).
In White, the Court cut back the unavailability prong of Roberts by eliminating its application to most hearsay exceptions. White specifically rejected a requirement that unavailability be shown under the excited utterance and statements for medical treatment exceptions to the hearsay rule. However, White contained another broad and unfortunate dictum suggesting that the constitutional unavailability requirement set forth in Roberts applies only to hearsay offered under the former testimony exception and not to other established exceptions. (Id. at 354.) To confine the requirement primarily to the former testimony exception makes it largely meaningless, because the former testimony exception already has its own unavailability requirement as a matter of hearsay law. This dictum has been roundly criticized (see, e.g., Barbara Rook Snyder, Defining the Contours of Unavailability and Reliability for the Confrontation Clause, 22 CAP. U. L. REV. 189, 206 (1993) (collecting citations)), and some states have imposed an unavailability requirement on other hearsay exceptions as a matter of state constitutional law. (See, e.g., Oregon v. Moore, 334 Or. 328, 49 P.3d 785 (2002) (imposing an unavailability requirement on hearsay admitted under the excited utterance exception).)
If lower courts are left only with the reliability prong of Roberts, they have limited options. They can either find the constitutional reliability standard satisfied by the same considerations that allowed the statement to be admitted as a hearsay exception, or they are required to exclude it altogether. There are likely to be many cases where a court is willing to accept the reliability of the hearsay as being constitutionally sufficient, but would still like to require the declarant to appear in person for cross-examination if he or she is available. White has largely foreclosed that option.
An important rationale of the Crawford decision was the following: “To be sure, the Clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” (124 S. Ct. at 1370.) That same rationale should apply to nontestimonial hearsay and allow courts the authority to require that an available declarant be brought to court for cross-examination, at least where the hearsay statements are of central importance in the case, are susceptible to testing by cross-examination, and there are no adequate alternatives to cross-examination. (See Laird Kirkpatrick, Confrontation and Hearsay: Exemptions from the Constitutional Unavailability Requirement, 70 MINN. L. REV. 665 (1986).) Such an approach would allow the Confrontation Clause to function in appropriate cases as a rule of preference rather than solely as a rule of potential exclusion.

Chief Justice Marshall said of the Confrontation Clause: “I know of no principle in the preservation of which all are more concerned. I know none, by undermining which, life, liberty and property, might be more endangered. It is therefore incumbent on courts to be watchful of every inroad on a principle so truly important.” (United States v. Burr, 25 F. Cas. 187, 193 (C.C. Va. 1807 (No. 14,604).) The Crawford holding is responsive to Chief Justice Marshall’s command. It takes a major step forward in enhancing the protection provided by the Confrontation Clause against out-of-court testimonial statements, the type of hearsay that presents the greatest dangers and for which the case for confrontation is most compelling. In doing so, it brings the theory of the Confrontation Clause more in line with its historical roots without changing the results of most of the Court’s landmark decisions. But, is a step that can be taken without removing the protection that the Confrontation Clause has long provided defendants with respect to other forms of hearsay.

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