Oh My God! They [Almost] Killed Kenny! (Please Let Me Face My Accuser Part 2)

Sir Walter Raleigh Attrib.jpg

We began the tale of Mike and Sylvia and Kenny in an earlier entry, and we continue it today: Mike Crawford and his wife, Sylvia, you will recall, were visiting with Kenny Lee. Kenny got knifed – and accused Mike of doing it. Sylvia gave a statement to the police, who recorded it. Although Mike invoked marital privilege at his trial, the recording of Sylvia’s out-of-court statement was played for the jury. Mike got convicted.

His case, Crawford v. Washington, wound up in the US Supreme Court.

Mike’s position was that it wasn’t fair to introduce an untested statement against him at trial – his lawyer, of course, hadn’t been able to cross-examine Sylvia in the police interrogation room.

The state’s position was that even without an opportunity to cross examine, Sylvia was unavailable as a witness (because of the marital privilege), and the statement was ‘otherwise reliable’

That term, ‘otherwise reliable’, had come from a 1980 opinion of the Supreme Court, in a case called Ohio v. Roberts. The rule, as set forth in Roberts, was that

[W]hen a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. even then, his statement is admissible only if it bears adequate “indicia of reliability.” reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.

But what did ‘reliable’ mean, when it came to hearsay? And what in the world were ‘indicia of reliability’? In trying to answer these questions, courts were all over the place.

The Crawford court, in an opinion by Justice Antonin Scalia, decided that the answers were irrelevant, as we’ll see below.

To explain, Justice Scalia went back 200 years to the Confrontation Clause in the Sixth Amendment to the US Constitution. In fact he ultimately went back 400 years to the injustices that led to that amendment:

The most notorious instances of civil-law examination occurred in the great political trials of the 16th and 17th centuries. One such was the 1603 trial of sir Walter Raleigh for treason. Lord Cobham, Raleigh’s alleged accomplice, had implicated him in an examination before the Privy Council and in a letter. At Raleigh’s trial, these were read to the jury. Raleigh argued that Cobham had lied to save himself: “Cobham is absolutely in the King’s mercy; to excuse me cannot avail him; by accusing me he may hope for favour.” 1 D. Jardine, Criminal Trials 435 (1832). Suspecting that Cobham would recant, Raleigh dmeanded that the judges call him to appear, arguing that ‘[t]he Proof of the Common Law is by witness and jury: let Cobham be here, let him speak it. Call my accuser before my face . . .” 2 How. St. Tr., at 15-16. The judges refused, id., at 24, and, despite Raleigh’s protestations that he was being tried “by the Spanish Inquisition,” id., at 15, the jury convicted, and Raleigh was sentenced to death.

So Raleigh wound up on the scaffold, having been thrown under the bus (or at least the horse-drawn carriage) by out-of-court statements. Presumably, Cobham wasn’t unavailable. It certainly didn’t matter to Raleigh’s judges whether he was or he wasn’t. And because Cobham was not presented for cross-examination, it could not be known whether his statement was just an attempt to save his own skin or even the result of torture.

Justice Scalia continued:

One of Raleigh’s trial judges later lamented that “‘the justice of England has never been so degraded and injured as by the condemnation of Sir Walter Raleigh.'” 1 Jardine, supra, at 520. Through a series of statutory and judicial reforms, English law developed a right of confrontation that limited these abuses. For example, treason statutes required witnesses to confront the accused “face to face” at his arraignment. E.g., 13 Car. 2, c. 1, § 5 (1661); see 1 Hale, *45 supra, at 306. Courts, meanwhile, developed relatively strict rules of unavailability, admitting examinations only if the witness was demonstrably unable to testify in person. See Lord Morley’s Case, 6 How. St. Tr. 769, 770-771 (H.L. 1666); 2 Hale, supra, at 284; 1 Stephen, supra, at 358. Several authorities also stated that a suspect’s confession could be admitted only against himself, and not against others he implicated. See 2 W. Hawkins, Pleas of the Crown, ch. 46, § 3, pp. 603-604 (T. Leach 6th ed. 1787); 1 Hale, supra, at 585, n. (k); 1 G. Gilbert, Evidence 216 (C. Lofft ed. 1791); cf. Tong’s Case, Kel. J. 17, 18, 84 Eng. Rep. 1061, 1062 (1662) (treason). But see King v. Westbeer, 1 Leach 12, 168 Eng. Rep. 108, 109 (1739).

This, then, was the background against which the Sixth Amendment was framed. This was the evil the Confrontation Clause was supposed to prevent.

The opinion in Crawford concluded:

[W]here testimonial evidence is at issue . . . 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.

In this case, the State admitted Sylvia’s testimonial statement against petitioner, despite the fact that he had no opportunity to cross-examine her. That alone is sufficient to make out a violation of the Sixth Amendment. Roberts notwithstanding, we decline to mine the record in search of indicia of reliability. Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.

With these words, Justice Scalia overturns Sir Walter Raleigh’s conviction, tacitly admits that the death penalty sometimes claims the innocent – and, incidentally, provides a (relatively) happy outcome for Mike Crawford himself. But the case left important questions unanswered. One of them, of course, was what the ‘comprehensive definition of “testimonial”‘ might look like. Another was how ‘non-testimonial’ hearsay might be treated by individual states.

We’ll take a look in future entries at how courts have dealt with the confrontation clause in the post-Crawford era. A hint: the term ‘primary purpose’ comes up a lot when talking about out-of-court statements. And we’ll take a look at how the term ‘primary purpose’ has been used to undermine some of the protection afforded by the Confrontation Clause.