CONFRONTATION
"The primary object of the constitutional provision in question was to prevent depositions of ex parte affidavits . . . being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief"154 The right of confrontation is "[o]ne of the fundamental guarantees of life and liberty . . . long deemed so essential for the due protection of life and liberty that it is guarded against legislative and judicial action by provisions in the Constitution of the United States and in the constitutions of most if not of all the States composing the Union."155 Before 1965, when the Court held the right to be protected against state abridgment,156 it had little need to clarify the relationship between the right of confrontation and the hearsay rule,157 inasmuch as its supervisory powers over the inferior federal courts permitted it to control the admission of hearsay on this basis.158 Thus, on the basis of the Confrontation Clause, it had concluded that evidence given at a preliminary hearing could not be used at the trial if the absence of the witness was attributable to the negligence of the prosecution,159 but that if a witness' absence had been procured by the defendant, testimony given at a previous trial on a different indictment could be used at the subsequent trial.160 It had also recognized the admissibility of dying declarations161 and of testimony given at a former trial by a witness since deceased.162 The prosecution was not permitted to use a judgment of conviction against other defendants on charges of theft in order to prove that the property found in the possession of defendant now on trial was stolen.163 A prosecutor, however, can comment on a defendant's presence at trial, and call attention to the defendant's opportunity to tailor his or her testimony to comport with that of previous witnesses.164chanrobles-red
154 Mattox v. United States, 156 U.S. 237, 242-43 (1895).
155 Kirby v. United States, 174 U.S. 47, 55, 56 (1899). Cf. Pointer v. Texas, 380 U.S. 400, 404-05 (1965). The right may be waived but it must be a knowing, intelligent waiver uncoerced from defendant. Brookhart v. Janis, 384 U.S. 1 (1966).
156 Pointer v. Texas, 380 U.S. 400 (1965) (overruling West v. Louisiana, 194 U.S.
258 (1904)); see also Stein v. New York, 346 U.S. 156, 195-96 (1953).
157 Hearsay is the prior out-of-court statements of a person, offered affirmatively for the truth of the matters asserted, presented at trial either orally by another person or in written form. Hickory v. United States, 151 U.S. 303, 309 (1894); Southern Ry. v. Gray, 241 U.S. 333, 337 (1916); Bridges v. Wixon, 326 U.S. 135 (1945).
158 Thus, while it had concluded that the co-conspirator exception to the hearsay rule was consistent with the Confrontation Clause, Delaney v. United States, 263 U.S. 586, 590 (1924), the Court's formulation of the exception and its limitations was pursuant to its supervisory powers. Lutwak v. United States, 344 U.S. 604 (1953); Krulewitch v. United States, 336 U.S. 440 (1949).
159 Motes v. United States, 178 U.S. 458 (1900).
160 Reynolds v. United States, 98 U.S. 145 (1879).
161 Kirby v. United States, 174 U.S. 47, 61 (1899); Robertson v. Baldwin, 165 U.S. 275, 282 (1897).
162 Mattox v. United States, 156 U.S. 237, 240 (1895).
163 Kirby v. United States, 174 U.S. 47 (1899), and Dowdell v. United States, 221 U.S. 325 (1911), recognized the inapplicability of the clause to the admission of documentary evidence to establish collateral facts, admissible under the common law, to permit certification as an additional record to the appellate court of the events of the trial.
164 Portuondo v. Agard, 529 U.S. 61 (2000).
In a series of decisions beginning in 1965, the Court seemed to equate the Confrontation Clause with the hearsay rule, positing that a major purpose of the clause was "to give the defendant charged with crime an opportunity to cross-examine the witnesses against him," unless one of the hearsay exceptions applies.165 Thus, in Pointer v. Texas,166 the complaining witness had testified at a preliminary hearing at which he was not cross-examined and the defendant was not represented by counsel; by the time of trial, the witness had moved to another State and the prosecutor made no effort to obtain his return. Offering the preliminary hearing testimony violated defendant's right of confrontation. In Douglas v. Alabama,167 the prosecution called as a witness the defendant's alleged accomplice, and when the accomplice refused to testify, pleading his privilege against self-incrimination, the prosecutor read to him to "refresh" his memory a confession in which he implicated defendant. Because defendant could not cross-examine the accomplice with regard to the truth of the confession, the Court held the Confrontation Clause had been violated. In Bruton v. United States,168 the use at a joint trial of a confession made by one of the defendants was held to violate the confrontation rights of the other defendant who was implicated by it because he could not cross-examine the codefendant not taking the stand.169 The Court continues to view as "presumptively unreliable accomplices' confessions that incriminate defendants."170chanrobles-red
165 Pointer v. Texas, 380 U.S. 400, 406-07 (1965); Douglas v. Alabama, 380 U.S. 415, 418 (1965). "The right to confrontation is basically a trial right. It includes both the opportunity to cross-examine and the occasion for the jury to weigh the demeanor of the witness." Barber v. Page, 390 U.S. 719, 725 (1968). Unjustified limitation of defendant's right to cross-examine witnesses presented against him at trial may constitute a confrontation clause violation. Smith v. Illinois, 390 U.S. 129 (1968), or a denial of due process, Alford v. United States, 282 U.S. 687 (1931); and In re Oliver, 333 U.S. 257 (1948).
166 380 U.S. 400 (1965). Justices Harlan and Stewart concurred on due process grounds, rejecting the "incorporation" holding. Id. at 408, 409. See also Barber v. Page, 390 U.S. 719 (1968), in which the Court refused to permit the State to use the preliminary hearing testimony of a witness in a federal prison in another State at the time of trial. The Court acknowledged the hearsay exception permitting the use of such evidence when a witness was unavailable but refused to find him "unavailable" when the State had made no effort to procure him; Mancusi v. Stubbs, 408 U.S. 204 (1972), in which the Court permitted the State to assume the unavailability of a witness because he now resided in Sweden and to use the transcript of the witness' testimony at a former trial.
167 380 U.S. 415 (1965). See also Smith v. Illinois, 390 U.S. 129 (1968) (informer as prosecution witness permitted to identify himself by alias and to conceal his true name and address; Confrontation Clause violated because defense could not effectively cross-examine); Davis v. Alaska, 415 U.S. 308 (1974) (state law prohibiting disclosure of identity of juvenile offenders could not be applied to preclude cross-examination of witness about his juvenile record when object was to allege possible bias on part of witness). Cf. Chambers v. Mississippi, 410 U.S. 284 (1973); United States v. Nobles, 422 U.S. 233, 240-41 (1975).
168 391 U.S. 123 (1968). The Court in this case equated confrontation with the hearsay rule, first emphasizing "that the hearsay statement inculpating petitioner was clearly inadmissible against him under traditional rules of evidence", id. at 128 n.3, and then observing that "[t]he reason for excluding this evidence as an evidentiary matter also requires its exclusion as a constitutional matter." Id. at 136 n.12 (emphasis by Court). Bruton was applied retroactively in a state case in Roberts v. Russell, 392 U.S. 293 (1968). Where, however, the codefendant takes the stand in his own defense, denies making the alleged out-of-court statement implicating defendant, and proceeds to testify favorably to the defendant concerning the underlying facts, the defendant has not been denied his right of confrontation under Bruton, Nelson v. O'Neil, 402 U.S. 622 (1971). In two cases, violations of the rule in Bruton have been held to be "harmless error" in the light of the overwhelming amount of legally admitted evidence supporting conviction. Harrington v. California, 395 U.S. 250 (1969); Schneble v. Florida, 405 U.S. 427 (1972). Bruton was held inapplicable, however, when the nontestifying codefendant's confession was redacted to omit any reference to the defendant, and was circumstantially incriminating only as the result of other evidence properly introduced. Richardson v. Marsh, 481 U.S. 200 (1987). Bruton was held applicable, however, where a blank space or the word "deleted" is substituted for the defendant's name in a co-defendant's confession, making such confession incriminating of the defendant on its face. Gray v. Maryland, 523 U.S. 185 (1998).
169 In Parker v. Randolph, 442 U.S. 62 (1979), the Court was evenly divided on the question whether interlocking confessions may be admitted without violating the clause. Four Justices held that admission of such confessions is proper, even though neither defendant testifies, if the judge gives the jury a limiting instruction. Four Justices held that a harmless error analysis should be applied, although they then divided over its meaning in this case. The former approach was rejected in favor of the latter in Cruz v. New York, 481 U.S. 186 (1987). The appropriate focus is on reliability, the Court indicated, and "the defendant's confession may be considered at trial in assessing whether his codefendant's statements are supported by sufficient 'indicia of reliability' to be directly admissible against him (assuming the 'unavailability of the codefendant' despite the lack of opportunity for cross-examination." 481 U.S. at 193-94.
170 Lee v. Illinois, 476 U.S. 530, 541 (1986). Lilly v. Virginia, 527 U.S. 116 (1999).
More recently, however, the Court has moved away from these cases. "While . . . hearsay rules and the Confrontation Clause are generally designed to protect similar values it is quite a different thing to suggest that the overlap is complete and that the Confrontation Clause is nothing more or less than a codification of the rules of hearsay and their exceptions as they existed historically at common law. Our decisions have never established such a congruence; indeed, we have more than once found a violation of confrontation values even though the statements in issue were admitted under an arguably recognized hearsay exception .... The converse is equally true: merely because evidence is admitted in violation of a long-established hearsay rule does not lead to the automatic conclusion that confrontation rights have been denied."171chanrobles-red
171 California v. Green, 399 U.S. 149, 155-56 (1970); Dutton v. Evans, 400 U.S. 74, 80-86 (1970). Compare id. at 93, 94, 95 (Justice Harlan concurring), with id. at 100, 105 n.7 (Justice Marshall dissenting). See also United States v. Inadi, 475 U.S. 387 (1986).
Further, the Court in California v. Green172 upheld the use at trial as substantive evidence of two prior statements made by a witness who at the trial claimed that he had been under the influence of LSD at the time of the occurrence of the events in question and that he could therefore neither deny nor affirm the truth of his prior statements. One of the earlier statements was sworn testimony given at a preliminary hearing at which the defendant was represented by counsel with the opportunity to cross-examine the witness; that statement was admissible because it had been subjected to cross-examination earlier, the Court held, and that was all that was required. The other statement had been made to policemen during custodial interrogation, had not been under oath, and, of course, had not been subject to cross-examination, but the Court deemed it admissible because the witness had been present at the trial and could have been cross-examined then. "[T]he Confrontation Clause does not require excluding from evidence the prior statements of a witness who concedes making the statements, and who may be asked to defend or otherwise explain the inconsistency between his prior and his present version of the events in question, thus opening himself to full cross-examination at trial as to both stories."173 But in Dutton v. Evans,174 the Court upheld the use as substantive evidence at trial of a statement made by a witness whom the prosecution could have produced but did not. Presentation of a statement by a witness who is under oath, in the presence of the jury, and subject to cross-examination by the defendant is only one way of complying with the Confrontation Clause, four Justices concluded. Thus, at least in the absence of prosecutorial misconduct or negligence and where the evidence is not "crucial" or "devastating," the Confrontation Clause is satisfied if the circumstances of presentation of out-of-court statements are such that "the trier of fact [has] a satisfactory basis for evaluating the truth of the [hearsay] statement," and this is to be ascertained in each case by focusing on the reliability of the proffered hearsay statement, that is, by an inquiry into the likelihood that cross-examination of the declarant at trial could successfully call into question the declaration's apparent meaning or the declarant's sincerity, perception, or memory.175chanrobles-red
172 399 U.S. 149 (1970).
173 399 U.S. at 164. Justice Brennan dissented. Id. at 189. See also Nelson v. O'Neil, 402 U.S. 622 (1971). "The Confrontation Clause includes no guarantee that every witness called by the prosecution will refrain from giving testimony that is marred by forgetfulness, confusion, or evasion. To the contrary, the Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose these infirmities through cross-examination." Delaware v. Fensterer, 474 U.S. 15, 21-22 (1985) (per curiam) (expert witness testified as to conclusion, but could not remember basis for conclusion). See also United States v. Owens, 484 U.S. 554 (1988) (testimony as to previous, out-of-court identification statement is not barred by witness' inability, due to memory loss, to explain the basis for his identification).
174 400 U.S. 74 (1970). The statement was made by an alleged co-conspirator of the defendant on trial and was admissible under the co-conspirator exception to the hearsay rule permitting the use of a declaration by one conspirator against all his fellow conspirators. The state rule permitted the use of a statement made during the concealment stage of the conspiracy while the federal rule permitted use of a statement made only in the course of and in furtherance of the conspiracy. Id. at 78, 81-82.
175 400 U.S. at 86-89. The quoted phrase is at 89, (quoting California v. Green, 399 U.S. 149, 161 (1970)). Justice Harlan concurred to carry the case, on the view that (1) the Confrontation Clause requires only that any testimony actually given at trial must be subject to cross-examination, but (2) in the absence of counter-vailing circumstances introduction of prior recorded testimony— "trial by affidavit"—would violate the clause. Id. at 93, 95, 97. Justices Marshall, Black, Douglas, and Brennan dissented, id. at 100, arguing for adoption of a rule that: "The incriminatory extrajudicial statement of an alleged accomplice is so inherently prejudicial that it cannot be introduced unless there is an opportunity to cross-examine the declarant, whether or not his statement falls within a genuine exception to the hearsay rule." Id. at 110-11. The Clause protects defendants against use of substantive evidence against them, but does not bar rebuttal of the defendant's own testimony. Tennessee v. Street, 471 U.S. 409 (1985) (use of accomplice's confession not to establish facts as to defendant's participation in the crime, but instead to support officer's rebuttal of defendant's testimony as to circumstances of defendant's confession; presence of officer assured right of cross-examination).
In Ohio v. Roberts, a Court majority adopted the reliability test for satisfying the confrontation requirement through use of a statement by an unavailable witness.14 Roberts was applied and narrowed over the course of 24 years,15 and then overruled in Crawford v. Washington.16 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.” 17 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.” 18 “Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.” 19
Crawford represents a decisive turning point for Confrontation Clause analysis. The basic principles are now clearly stated. “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 even though 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.20 The Court left “for another day any effort to spell out a comprehensive definition of ‘testimonial.’ ” The Court indicated, however, that the term covers “at a minimum” prior testimony at a preliminary hearing, at a former trial, or before a grand jury, and statements made during police interrogation.21chanrobles-red
14 448 U.S. 56 (1980). “[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.
15 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), holding 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).
16 124 S. Ct. 1354 (2004).
17 124 S. Ct. at 1370.
18 124 S. Ct. at 1371.
19 124 S. Ct. at 1374.
20 The Roberts Court had stated a two-part test, the first a “necessity” rule under which the prosecution must produce or demonstrate unavailability of the declarant despite reasonable, good-faith efforts to produce the declarant at trial (448 U.S. at 65, 74), and the second part turning on the reliability of a hearsay statement by an unavailable witness. Crawford overruled Roberts only with respect to reliability, and left the unavailability test intact.
21 124 S. Ct. at 1374.
Contrasting approaches to the Confrontation Clause were taken by the Court in two cases involving state efforts to protect a child from trauma while testifying. In Coy v. Iowa,183 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.184 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."185 Squarely rejecting the Wigmore view "that the only essential interest preserved by the right was cross-examination,"186 the Court emphasized the importance of face-to-face confrontation in eliciting truthful testimony.
Coy's interpretation of the Clause, though not its result, was rejected in Maryland v. Craig.187 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.188 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."189 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."190 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,"191 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."192 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.193chanrobles-red
183 487 U.S. 1012 (1988).
184 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.
185 487 U.S. at 1015, 1021.
186 487 U.S. at 1018 n.2.
187 497 U.S. 836 (1990).
188 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 Black-mun'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.
189 497 U.S. at 849 (emphasis original).
190 497 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.
191 497 U.S. at 855.
192 497 U.S. at 857.
193 497 U.S. at 855.
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, since the defendant's attorney participated in the hearing, and since the procedures allowed "full and effective" opportunity to cross-examine the witness at trial and request reconsideration of the competency ruling.194 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.195chanrobles-red
194 Kentucky v. Stincer, 482 U.S. 730, 744 (1987).
195 Michigan v. Lucas, 500 U.S. 145 (1991).
