"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 v. Roberts, 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.
In Crawford, 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 v. Clark, No. 13-1352.
From at least 1980, when the U.S. Supreme Court decided Ohio v. Roberts, 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.
In Crawford, 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 v. Clark, No. 13-1352.
Justice Scalia's opinion for the Court in Crawford said,
Interrogation by police was considered close enough to the examination by a committing magistrate as to come within the prohibition. In Davis v. Washington, the questioning was by a 911 operator, but the Court did not need to consider whether the operator was "an agent of law enforcement" for this purpose, as it decided that the questions asked in the heat of an emergency were not an interrogation.
In the present case, the Ohio Supreme Court thought that the state's mandatory child abuse reporting statute was sufficient to make preschool teachers the agents of law enforcement. I think that is utter nonsense. The original holding of Crawford that the police are like the justices of the peace of olde England is enough of a stretch by itself. That holding should not be stretched any further. Under the federal misprision of felony statute, 18 U.S.C. ยง4, every person in the United States is a mandatory reporter of all federal felonies. If a duty to report is enough to make a person an agent of law enforcement, then we are all agents of law enforcement.
I did not brief this issue in Clark because the brief for the State of Ohio, by the Cuyahoga County Prosecutor, covers that base. (That's Cleveland and vicinity, BTW.)
In my view, the historical analysis in Crawford was deficient in that it looked only at the historical practices of out-of-court statements that the Confrontation Clause was intended to exclude and failed to give due consideration to the statements it was understood to allow. The foremost, and perhaps only, such statement was the dying declaration -- the statement of a person who knows he is about to die regarding who did it. The Crawford opinion simply dumped this species of evidence into a footnote without really grappling with the undeniable fact that such declarations were admissible throughout the United States after adoption of the Bill of Rights and similar language in state constitutions.
In my reading of the early American cases, it was very clearly understood that when A testified to what the dying B said, A and not B was considered the "witness" for the purpose of the confrontation right. The Supreme Court needs to take this into account in deciding who a "witness" is and what statements are "testimonial." A statement can be "solemn" and it can be made for the purpose of identifying the perpetrator to law enforcement without being "testimonial." Most dying declarations were. To the extent that language in the Crawford and Davis opinions is contrary, it is incorrect and should be disapproved.
For statements made to the police or intended to be conveyed to the police, there are at least three categories. There are statements made or solicited for a purpose unrelated to prosecution, such as dealing with an emergency. Davis correctly holds that these statements are not "testimonial" and not subject to the Confrontation Clause. There are statements made or solicited for the purpose of building a case against an identified suspect. Crawford correctly holds that these statements are testimonial and subject to the Confrontation Clause.
The third category is statements that are made to identify a perpetrator to law enforcement or solicited by law enforcement to find out who did it. Hammond, the companion case to Davis, says that statements taken "to investigate a possible crime" are subject to the Confrontation Clause, but I think it is wrong.
Does that aspect of Hammond survive Williams v. Illinois? I think not, if the statement in question also lacks the formality associated with testimony. In part IV of the Williams opinion, a plurality of four Justices say that a report of a DNA test done before identification of any suspect is not subject to the Confrontation Clause. Justice Thomas, concurring in the judgment, adheres to his lone view that the formality of the statement is the controlling factor. Taking those two together, as I believe is correct when there is no majority opinion, see CJLF's brief in Grutter v. Bollinger, means any statement that passes both tests is admissible under the Confrontation Clause. The teacher's questioning of the child in this case clearly passes both tests.
CJLF's brief in Ohio v. Clark was mailed in today.
Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. We leave for another day any effort to spell out a comprehensive definition of "testimonial." Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.Who are "the police"? What is an "interrogation"? What else is covered beyond the "minimum"? All that was left for future cases.
Interrogation by police was considered close enough to the examination by a committing magistrate as to come within the prohibition. In Davis v. Washington, the questioning was by a 911 operator, but the Court did not need to consider whether the operator was "an agent of law enforcement" for this purpose, as it decided that the questions asked in the heat of an emergency were not an interrogation.
In the present case, the Ohio Supreme Court thought that the state's mandatory child abuse reporting statute was sufficient to make preschool teachers the agents of law enforcement. I think that is utter nonsense. The original holding of Crawford that the police are like the justices of the peace of olde England is enough of a stretch by itself. That holding should not be stretched any further. Under the federal misprision of felony statute, 18 U.S.C. ยง4, every person in the United States is a mandatory reporter of all federal felonies. If a duty to report is enough to make a person an agent of law enforcement, then we are all agents of law enforcement.
I did not brief this issue in Clark because the brief for the State of Ohio, by the Cuyahoga County Prosecutor, covers that base. (That's Cleveland and vicinity, BTW.)
In my view, the historical analysis in Crawford was deficient in that it looked only at the historical practices of out-of-court statements that the Confrontation Clause was intended to exclude and failed to give due consideration to the statements it was understood to allow. The foremost, and perhaps only, such statement was the dying declaration -- the statement of a person who knows he is about to die regarding who did it. The Crawford opinion simply dumped this species of evidence into a footnote without really grappling with the undeniable fact that such declarations were admissible throughout the United States after adoption of the Bill of Rights and similar language in state constitutions.
In my reading of the early American cases, it was very clearly understood that when A testified to what the dying B said, A and not B was considered the "witness" for the purpose of the confrontation right. The Supreme Court needs to take this into account in deciding who a "witness" is and what statements are "testimonial." A statement can be "solemn" and it can be made for the purpose of identifying the perpetrator to law enforcement without being "testimonial." Most dying declarations were. To the extent that language in the Crawford and Davis opinions is contrary, it is incorrect and should be disapproved.
For statements made to the police or intended to be conveyed to the police, there are at least three categories. There are statements made or solicited for a purpose unrelated to prosecution, such as dealing with an emergency. Davis correctly holds that these statements are not "testimonial" and not subject to the Confrontation Clause. There are statements made or solicited for the purpose of building a case against an identified suspect. Crawford correctly holds that these statements are testimonial and subject to the Confrontation Clause.
The third category is statements that are made to identify a perpetrator to law enforcement or solicited by law enforcement to find out who did it. Hammond, the companion case to Davis, says that statements taken "to investigate a possible crime" are subject to the Confrontation Clause, but I think it is wrong.
Does that aspect of Hammond survive Williams v. Illinois? I think not, if the statement in question also lacks the formality associated with testimony. In part IV of the Williams opinion, a plurality of four Justices say that a report of a DNA test done before identification of any suspect is not subject to the Confrontation Clause. Justice Thomas, concurring in the judgment, adheres to his lone view that the formality of the statement is the controlling factor. Taking those two together, as I believe is correct when there is no majority opinion, see CJLF's brief in Grutter v. Bollinger, means any statement that passes both tests is admissible under the Confrontation Clause. The teacher's questioning of the child in this case clearly passes both tests.
CJLF's brief in Ohio v. Clark was mailed in today.
I like the historically-based dying declaration argument. Indeed, when I assisted the California Solicitor General in drafting his brief in Giles, I proposed a similar historical analysis that focused on the equitable reason why a declarant of a dying dec was not a "witness[]" withiin the meaning of the Confrontation Clause. Obviously, the Giles majority was not persuaded.
The following test -- which I previously coined the "resemblance test" -- is the one that I believe is the most historically accurate, and relatively easy for trial courts to administer. It was first set forth by me in my amicus brief on behalf of the CDAA in Cage. At my suggestion and urging, it was thereafter incorporated into the state's briefs in Davis and Hammon. And it was refined in my blog post on confrontationright.blogspot.com -- at which time I proposed the "targeted" individual standard that the was adopted by four Justices in Williams. (Justice Kagan stated that no one knows where the "targeted" individual test came from. She (or her clerks) obviously didn't read my blog post. But perhaps it caught the eye of one or more of the four Justices who adopted it?)
So, when is a declarant a CC "witness"? When each of the following is met:
(1) The declarant's statement is obtained by a state actor or their agent. (A "nonstate actor" [that is Justice Scalia's terminology in his dissent in Bryant] declarant who makes a statement to another nonstate actor [such as the accusatory hearsay in Dutton or the child declarant's accusatory hearsay in White that was made to nonstate actors] is not a CC "witness.");
(2) The "primary purpose" of the questioning (by a state actor or their agent) was to accuse a "targeted" person of a crime. Or, stated differently, was to build a case against an identified person who, at the time of the questioning by the was subject to arrest based on probable cause or, at a minimum, was subject to detention based on reasonable suspicion.
(The continuation of my comment)
and (3) the declarant had some basic understanding/knowledge that he/she was providing information that could be used in connection with a future criminal prosecution.
Unless all three requirements are met, the declarant is not a CC "witness."
My proposed "resmblance" test has a strong pre-founding era historical basis, as exmplified by Raleigh's Trial and Cobham's accusations (especially when contrasted to the anonymous accusation by the Portugese gentleman made to the boat captain, Dyer, in Lisbon). It reigns in the scope of Crawford's "testimonial" approach (to the satisfaction of at least four Justices). And is easily adminstered by trial courts. Or, at least, easier to admisiter than the present day muddled testimonal approach. Finally, it also satisfactorily addresses "core" cases like Crawford and other Lee/Lilly-like cases involving accusations by nontestifying defendants to state actors in reaponse to questioning designed to build a case against the accused.
In Ohio v. Clark, there were no state actors involved in making or producing/eliciting/generating the child declarant's accusations. Or, stated differently, there is no causal connection between the child's accusation and any conduct on the part of any state actor or their agent. The abscence of the necessary element of state action should be the end of the inquiry. The fact that the State of Ohio mandated that the questioning teacher "report" suspected child abuse to a state actor didn't transform the private school teacher into a state actor (or their agent) for purpose of the CC.
In addition, it is clear that the teacher's primary purpose in questioning the child was not to accuse a targeted person of a crime. It might have crossed this threshold had the teacher persisted in her questioning after the child identified the defendant. But this didn't transpire.
Finally, give the child's age -- 3 years old -- it is highly questionable whether a reasonable 3 year old in his position would have had a sufficient understanding of the criminal justice system ramifications of his accusation.
Despite the propsal that I have reiterated, I believe that it will be very difficult to convince Justice Thomas that he erred in his formaility/solemnity test. Perhaps by grafting that requirement into my three-part resemblance test, the Williams foursome can bring him along. But I doubt it. Another long-shot is that five Justices give up on the decade-old Crawford experiment and return to Roberts. But that is also very unlikely.
Expect another splintered opinion. Hopefully, a majority of the Court will at least be able to clarify the significance of the state actor/nonstate actor distinction.