"In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him ...." So says the Sixth Amendment to the United States Constitution, as do the bills of rights of many state constitutions. But what does that mean?
From at least 1980, when the U.S. Supreme Court decided Ohio
, until 2004, when it decided Crawford v. Washington
, the Confrontation Clause was pretty much a constitutionalization of the hearsay rule. If the prosecution wanted A to testify as to what B said, the defendant had a right to confront and cross-examine B, subject to all the "firmly rooted hearsay exception[s]," and there are a lot of them. The main consideration was deciding whether the particular form of hearsay was reliable.
, the Supreme Court tossed the Roberts
rule and its reliability focus overboard and went with a historical analysis instead. The purpose of the Confrontation Clause is to prevent abuses of the kind that happened in the trial of Sir Walter Raleigh (the founder of Anglo-America) and other old English cases where testimony is introduced in the form of affidavits or examinations of a witness conducted ex parte
, i.e., when the defendant is not present and can't cross-examine. In circumstances like these, the examinee is the "witness" and the statement is "testimonial." The Confrontation Clause forbids introduction, and there are no exceptions. In other cases of garden-variety hearsay, A is the "witness," and admissibility of B's statement is a matter for state hearsay rules, not the U.S. Constitution. In a state case, reliability of the hearsay is an issue for state rulemakers and courts to ponder, not the federal courts.
Okay, but what statements are sufficiently like the forbidden historical practices to make B's statement "testimonial" and make B and not A the "witness" for this purpose. The Crawford
Court left that largely for future decisions, a recipe for chaos.
How about an injured preschooler's response to a teacher's question, "Who did this? What happened to you?" That is the question before the Supreme Court in Ohio
, No. 13-1352.