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Today in the Community: December 6, 2011

Today in the Community we are discussing the latest in the line of the Court’s Confrontation Clause cases:  Williams v. Illinois, which is scheduled for oral argument today (and which Tom Goldstein previewed for the blog).  We would like to hear your views on how you think the Court should decide the case (as opposed to a prediction on how it will decide the case, which is a topic on which we will invite comments later this week).

Two of our favorite comments from yesterday’s discussion follow the jump.

Joelle Moreno 

“There must be some way out of here,” said the joker to the thief. “There’s too much confusion, I can’t get no relief.”

This is what it feels like to teach the Supreme Court’s current Confrontation Clause jurisprudence and the post-Crawford delineation between “testimonial statements” — which raise confrontation concerns — and all other hearsay statements. In his majority opinion in Crawford in 2004, Justice Scalia opted to leave the definition of testimonial statements for “another day.” Since that day has not yet arrived, students demand and deserve a more helpful approach. It is easy to teach them that, after Crawford, testimonial statements are inadmissible absent confrontation. But given the range of hearsay statements made by victims and witnesses during the course of a criminal investigation, students invariably find it difficult to understand how judges should apply any of the Court’s possible definitions of “testimonial statement” which include: (1) the broadest of the three Crawford definitions (statements “made under circumstances that would lead an objective witness reasonably to believe that the statement would be available for use at a later trial”); (2) the narrower Davis definition (statements where “the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecutions”); or (3) the narrowest Bryant definition (statements procured for the “primary purpose of creating an out-of-court substitute for trial testimony”).

Those of us who hoped that Bryant would bring clarity to the constitutional standard have been disappointed. The Crawford Court tasked state and federal judges with the unenviable job of assessing an objective crime victim’s or witness’s reasonable beliefs regarding the possible primary purpose of the making and taking of mid-investigation statements. The Bryant Court has now added the confusing new requirement that judges use “a combined inquiry that accounts for both [the intent of] the declarant and the interrogator.” The Bryant Court has also muddied the Davis distinction between testimonial statements and statements that are non-testimonial because the primary purpose of interrogation was to help the police resolve an ongoing emergency. Bryant, which involved police interrogation of a bleeding gunshot victim before the suspect was apprehended, is illustrative of the complexities of determining the extent and duration of an ongoing emergency. The Bryant Court provides little clarity in a decision that ricochets among a range of possible factors including: (1) the nature of the dispute; (2) the scope of the potential harm to the victim; (3) the threat to additional identifiable victims; (4) the existence of a more generalized threat to the public; (5) the suspect’s choice of weapon; (6) whether the suspect remained at large; (7) the declarant’s medical condition if it may have affected the declarant’s ability to form a primary purpose; and (8) whether the informality of the interrogation evinces a primary purpose of resolving an ongoing emergency and/or failed to alert the reasonable declarant to the possible prosecutorial use of his statement.

By the time evidence students have finished reading and discussing the post-Crawford cases, they are convinced that the Sixth Amendment protects a defendant’s vitally important right to cross-examine prosecution witnesses. Although they also learn that Crawford has influenced almost 10,000 state and federal court confrontation decisions, students are equally convinced that judges cannot accurately or consistently apply the current standard — especially in cases where crime victims, witnesses, and police officers have multiple, shifting, or conflicting goals. Evidence teachers can do little to alleviate students’ legitimate concerns; but they can help channel this constructive critique into a thoughtful analysis of many of the underlying issues. This discussion might begin with specific questions, such as asking the class to assess the costs and benefits of the Court’s increasing attention to the formality of the testimonial statement. However, a genuinely productive discussion would also integrate more global concerns, such as: (1) assessing the Court’s recent emphasis on a textualist, originalist, and historical approach to confrontation; (2) evaluating the practice concerns raised by the Melendez-Diaz and Bullcoming dissenters; and (3) contrasting the Court’s narrow focus on the purpose and circumstances of the making of the statement before trial (which students should recognize from the hearsay exceptions) with a broader focus on the admission and use of these statements at trial as a surrogate for live witness testimony (which students should recognize from Bruton and other Sixth Amendment contexts).

Richard Friedman 

I certainly agree with Joelle that Bryant introduced unnecessary confusion. I’ve been very critical of the decision — you can see my posts on the Confrontation Blog, (I also have a series of posts on Williams, and will add to that, including commentary on the state-side briefs.) But the problem isn’t with the testimonial approach itself, which I think simply expresses the fundamental meaning of the Confrontation Clause; I’ll have more on that as a commentator on Wednesday’s topic.

As to teaching this stuff: It’s not a bad thing for students to see a doctrine in flux. If they want things to be simple and clear, I think the answer is, “Well, it would be nice if that were always so. Maybe it will become so eventually in this area — remember it’s still less than a decade since the slate was wiped clean in this area — but in the meantime just bear in mind that sometimes, particularly when law changes and is in deep contention, it can remain quite confusing for some time. As lawyers, you have to learn to deal with this situation as best you can, because otherwise you’re not prepared to deal with reality.”

More broadly, I think Evidence courses have been doing hearsay and confrontation in an unfortunate way. The tendency is to spend a few weeks on hearsay and then, almost as an afterthought, say, oh, there’s this thing called the Confrontation Clause, and in some cases it requires the exclusion of statements that modern hearsay law would not oppose. I think the confrontation right, and Crawford’s transformation of it, should be introduced much earlier. Indeed, in the next edition of my own book (The Elements of Evidence), the whole unit will be organized much more around confrontation principles. I think historically this is valid — the confrontation right developed before the rule against hearsay — and it should leave students asking a very important question: After the right of a party to cross-examine adverse witnesses — that is, those who make a testimonial statement against the party — has been protected, what further purpose remains to be served by the rule against hearsay? My own view — not much.

Recommended Citation: Aaron Tang, Today in the Community: December 6, 2011, SCOTUSblog (Dec. 6, 2011, 8:16 AM),