Overrule Crawford – Response to Professor Friedman


Ohio v. Clark presents an opportunity for the Supreme Court to survey the confusion its confrontation doctrine has generated, and to set confrontation doctrine right.

Confrontation in its archetypal form––where a victim accuses the defendant of a crime in open court before a judge and jury––is the critical threshold at the core of an American criminal trial. Confusion of confrontation with cross-examination has eviscerated that threshold right. What was meant to be a critical constraint upon the state, ensuring that accusations of crime leveled against a citizen are made live in court under oath  before the jury that will judge him, has instead been construed to permit proof by out-of-court accusations . The Supreme Court should restore the historical and constitutional function of the Confrontation Clause as a check on state prosecutorial power.

The Confrontation Clause should be understood as condemnation of convictions in the total absence of live sworn testimonial proof of guilt before the jury.  Instead, Scalia assumes that the purpose of the Confrontation Clause is to exclude  ex parte examinations from evidence. Reading the Confrontation Clause to exclude reports of such examinations requires Scalia to expand the phrase “the witnesses against” to include all declarants of testimonial hearsay statements. .

Scalia, for the Court in Crawford  assumes from the outset that the Confrontation Clause establishes a constitutional evidentiary rule of admissibility. He starts with the assertion: “the principal evil at which the Confrontation Clause was directed was [ DRUM ROLL, here of Raleigh and fundamental right, but no …]
the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused.

Scalia sees the constitutional mission as regulation of hearsay:
“Leaving the regulation of out-of-court statements to the law of evidence would render the Confrontation Clause powerless … . Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment’s protection to the vagaries of the rules of evidence.”

This misconception of purpose leads Scalia to misconceive the Confrontation Clause as a constitutional hearsay rule, and to manhandle its language to accommodate his misconception of it.



(1) ‘Dying Declarations’: the ‘exception’ that proves our rule:

Giles v. California exposed the nonsensical conception of confrontation underlying the Scalia/Friedman testimonial approach. Giles was charged with the murder of his girl friend. He claimed self-defense. As proof to negate the defendant’s claim of self-defense, the prosecutor was allowed to introduce statements that the victim had made three weeks before the fatal shooting to a police officer investigating a domestic violence report.

In an amazing display of illogic, the justices (and you, Richie) simply assumed that the defendant had a right to confront the homicide victim. But, a defendant in a homicide prosecution has no constitutional right to be confronted live in court by the homicide victim. The victim of a homicide can never be a witness against the defendant in the homicide trial because the victim of the homicide is dead, by definition. The crime of homicide is not complete until the victim dies. Failing to recognize this, the justices (and commentators in support) debate whether the defendant could be found to have forfeited his right to confront the victim without having first been convicted of her murder, and get utterly lost in the circularity of the question as they have constructed it. The only legal questions posed by the admission of a homicide victim’s statement are, first, whether it is admissible or excludable under state hearsay law, and second, if admitted in evidence, whether it is alone or with other evidence sufficient to support a conviction, again an issue in the first instance of state law. There is no confrontation issue posed simply by the admission of the statement of a homicide victim in the homicide trial because the Confrontation Clause imposes no duty on the prosecution to produce the victim.

The nonsense of trying to make sense of a constitutional right of a defendant to be confronted by the dead homicide victim continued in Michigan v. Bryant. Had the Confrontation question been properly framed as whether the prosecutor was responsible for producing Bryant’s victim live at trial, the issue would have been solved with no fuss. As in Giles, production at trial of the dead victim is not even a theoretical possibility. Whether the victim’s dying accusation against the defendant should have been admitted is a question of hearsay law, not constitutional law. Likewise, the question of whether the evidence, once admitted, is sufficient to allow the jury to convict, is a question of evidentiary sufficiency under state law. A state could decide that the homicide victim’s hearsay, taken together with the other evidence offered by the prosecution, like the physical evidence from Bryant’s screen porch, could support a jury verdict beyond reasonable doubt. The absence of the hearsay declarant did not create a doubt beyond the jury’s capacity to resolve.

Dying declarations are an exception to the hearsay rule because they are out-of-court statements offered for their truth. They are also an exception to the rule that testimony must be sworn because contemplation of immediately impending death was substitute. They are not an exception to the rule of confrontation because the clause imposes no duty on the state to produce the victim of a homicide to confront the defendant. Dying Declarations are statements of persons who cannot be produced. The Confrontation Clause has nothing to say about them. Think of them not as ‘exception’ to confrontation but rather as ‘exclusion’.

(2) Co-conspirators Statements:
Friedman advances Alex Whiting’s question to us about how our approach handles co-conspirator statements. We respond with the agency theory of conspiracy, according to which a statement made by a co-conspirator during the course of and in furtherance of a conspiracy of which the accused is a part is deemed to be a statement of the accused. Richie, you dismiss as spouting fictions. But your concern seems not with the theory of agency but rather with ridiculous extensions of it that prosecutorial judges have foisted upon us. He says, “The fictitious quality of a rule … is augmented by courts’ willingness to perceive very far flung conspiracies and to be creative in imagining how given statements may have advanced the aims of the conspiracy.” True, but this is not reason to misconstrue the Confrontation Clause.

(3) Business records: give us a good example.

Roger Park asked: “Suppose that an essential element of a federal crime is movement in interstate commerce. The only evidence on that point is a business
record. What result? ”

We responded: “Roger, the business record in your hypo proves a jurisdictional element, not an element of guilt. Nexus with interstate commerce is a jurisdictional element of the charged federal offense. It establishes the federal government’s authority to prosecute the charged offense. Whether or not prosecution of a charge falls within federal jurisdiction is a legal question, properly addressed to the judge, not to the jury. If the jurisdictional issue is submitted to a jury, there need be no greater constriction on the evidence the jury is permitted to consider than on the judge, which means that hearsay proof is permissible. Proof by business record in your hypo is fine.”

Friedman complains: “The Nessons shrugged aside the particular illustration presented by Roger on the basis that it involved a jurisdictional issue. But of course that is not always the case.”

Richie: We challenge you:

• Come up with a single specific case in which our view of confrontation would stop a serious prosecution because of inability to prove a substantive element of a serious crime with a business record.

fern & charlie nesson