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The Sixth Amendment to the United States Constitution states:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

The phrase "to be confronted with the witnesses against him," commonly referred to as the Confrontation Clause, would appear to be a fairly straightforward command that in a criminal prosecution all witnesses against the accused must 'confront' the accused. The accused then has the opportunity to confront those witnesses through cross examination. The difficulty arises in determining who exactly is a witness that the accused has a right to confront. If a person does not appear in court to give testimony, but their out-of-court statements are used against the accused in court, is that person a witness for purposes of the Sixth Amendment?

This is a question that has perplexed the Supreme Court ever since it first decided the Sixth Amendment right to confrontation applied to the states via the Fourteenth Amendment. In one of the first cases dealing with the Confrontation Clause, Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.ed.2d 597 (1980), the Court held that the Clause did not bar the statements of a witness made during a preliminary hearing when the witness was not available at trial. The Court came to that conclusion by reasoning that the Confrontation Clause was primarily concerned with the reliability of evidence. Thus, use of an out of court statement by an unavailable witnesses at trial did not violate the right of the accused to confront the witness if the statement was accompanied by "adequate indicia of reliability." The Court further held that sufficient indicia of reliability was established if the statement fell within any of the "firmly rooted" exceptions to the general rule excluding hearsay testimony. In essence, the Court ruled that the Confrontation Clause meant nothing more than that the traditional rules of evidence regarding hearsay testimony applied in a criminal trial.

In Roberts, the Court did not address the question whether a witness who was not available to testify at trial was nevertheless still a witness for purposes of the Confrontation Clause. Instead, the Court read the Confrontation Clause as intended only to ensure the exclusion of unreliable evidence in the form of blatantly inadmissible hearsay. The Court was satisfied that the cross-examination of the witness at a preliminary hearing in that case was sufficiently similar cross-examination at trial to ensure the degree of reliability required by the Confrontation Clause.

Twenty Four years later, the Court abandoned the Roberts approach in favor of drawing a distinction between out-of-court statements that are "testimonial" and those that are "nontestimonial." See,Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Under Crawford, a statement is testimonial if made in a formal setting under circumstances that would cause the speaker to believe the statement would later be used at trial, including statements made to law enforcement to further an investigation. Testimonial statements could be introduced at trial only if it was shown that the witness was unavailable and that the accused previously had an opportunity to cross-examine the witness. Any statement that was not "testimonial" in nature, was by default "nontestimonial." Nontestimonial statements could be admitted against the accused at trial without violating the Confrontation Clause.

Seven years later in Michigan v. Bryant, 562 U.S. 344, 356, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011), the Court was again faced with the question of how to distinguish between testimonial and nontestimonial statements for purposes of the Confrontation Clause. The Court modified the Crawford approach to focus primarily on the intent or understanding of the person to whom the statement was made, rather than the person making the statement. Under Michigan v. Bryant, a statement will be deemed nontestimonial if the primary purpose of the statement is to address an ongoing emergency. A statement will be deemed testimonial when the primary purpose is to establish or prove past events potentially relevant to a later criminal prosecution. As in Roberts and Crawford before, the Court based its decision on its understanding of the purpose of the Confrontation Clause and the abuses it was supposedly intended to prevent, but paid scant attention to the actual language of the Clause.

Justice Scalia dissented from the Bryant opinion as did Justice Ginsberg. According to Scalia, the majority opinion created an expansive exception to the Confrontation Clause that was not envisioned by the Framers. Scalia did not take issue with the majority looking to the purpose of an out of court statement to determine whether the Confrontation Clause applied. He disagreed only with the majority view that the purpose of a statement should be determined from the perspective of the person to whom the statement is made (e.g., the investigating officer) rather than the person making the statement. Justice Ginsberg agreed with Scalia that it is the intent of the declarant that counts, not the intent of the interrogator or recipient of the statement.

The decisions are each based upon the Court's view of the history the Confrontation Clause, the common law regarding use of hearsay statements, and the Court's understanding of the "principal evil at which the Confrontation Clause was directed." According to the Court, the Confrontation Clause is primarily concerned with the use of "ex parte" examinations of witnesses. Thus, a witness is someone who gives a "solemn declaration or affirmation of a fact" for purposes of later use in a criminal proceeding. Only testimonial statements are solemn declarations or affirmations. Thus, the use of nontestimonial out of court statements against the accused in a criminal trial does not offend the Confrontation Clause, despite the fact that the accused has no opportunity to cross-examine the person who actually made the statement.

The Court's analysis of the confrontation clause as established by Roberts, Crawford and Bryant completely ignores the actual language of the Sixth Amendment. As pointed out by Justice Kennedy in his dissent in Melendez-Diaz v. Massacheusetts, 557 U.S. 305, 129 S.C t. 2527, 174 L.Ed.2d 314 (2009), the Confrontation Clause does not speak to admissibility of statements. Instead, the Confrontation Clause requires confrontation between an accused and any "witness against" the accused. The only relevant inquiry then is whether a person is a "witness against" the accused. If so, that person must confront the accused.

Logically, there is no meaningful distinction between a person who makes a "solemn declaration or affirmation of a fact" with the expectation that it will be used in court and a person who makes the same statement in a more casual setting without any such expectation. In both cases, the person making the statement is clearly a witness in the sense that their statement is being used by the prosecution to establish the guilt of the accused. It is difficult to see why one should be considered a witness for purposes of the Confrontation Clause while the other is not. The importance to the accused of being able to confront and cross-examine the person making the statement depends on how damaging the statement is, not on whether the statement was made with a particular purpose in mind by either the speaker or the hearer. In both instances, the need to probe the speaker's basis of knowledge, memory, reasons for making the statement, and potential bias is crucial to a fair trial.

Nevertheless, the Supreme Court apparently believes that the Framers of the Constitution (whoever they may or may not be) did not intend the Confrontation Clause to require the exclusion of "nontestimonial" out of court statements. Even if that is true, what the Framers actually wrote into the Constitution says otherwise. The Confrontation Clause clearly and unequivocally says that the accused has the right "to be confronted with the witnesses against him." It allows for no exceptions - certainly no exceptions based on the characterization of a particular statement as being "nontestimonial" as opposed to "testimonial."

While the majority in Bryant claimed to be following the reasoning of Crawford, the opinion is actually a step back toward the reliability analysis used in Roberts. The unspoken rationale for allowing nontestimonial statements to be admitted without confrontation is that the circumstances under which such statements are made somehow makes them more reliable than "testimonial" statements. That rationale seems dubious at best, and the Court has never satisfactorily explained why a statement made in an informal setting, such as in casual conversation, should be considered more reliable than a statement made with the expectation that it might be used to help identify or locate a suspect or otherwise assist the police in conducting an investigation.

Moreover, as the Court acknowledged in Crawford, the Confrontation Clause is not a guarantee that only reliable evidence will be admitted at trial. Instead, it is a guarantee that evidence in the form of witness testimony will be subject to a particular method of testing its reliability; i.e., confrontation and cross-examination. Even if nontestimonial out of court statements are considered to be somehow more reliable than testimonial statements, that reliability is not a substitute for confrontation.

So far, the Supreme Court has only applied the testimonial versus nontestimonial analysis in cases where the witness was not available to testify at trial. But, the analysis works the same even when the witness is available. The circumstances under which a statement is made and which determine whether it is considered testimonial or nontestimonial do not change simply because the speaker is unavailable for trial at some later date. If the Confrontation Clause applies only to "testimonial" statements, all "nontestimonial" out of court statements should be admissible at trial regardless of whether the person who made the statement is available to testify. Thus, under the analysis currently employed by the Supreme Court , the Constitution does not require the prosecution to produce the actual witness at trial, even if the witness is available. Instead, the prosecution should be able to rely solely on the testimony of the person claiming to have heard what the witness said. There can be little doubt, however, that allowing such a procedure would be a clear violation of the right to confrontation.


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