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Confronting Crawford

John Marshall Harlan

I go to Maine tomorrow, back to Maine, to speak with Maine lawyers about the Supreme Court’s change in the Constitutional rule of Confrontation, a change that requires rethinking how the justice system relates to cases of child abuse and wife beating. Hearsay from victims will no longer suffice. The accused is entitled to subject his accuser to cross examination if his accuser’s accusation is to be admitted in evidence at trial.

1. In State v. Courtney, the defendant appealed his conviction for domestic assault. The evidence indicated that he had choked his former girlfriend until she lost consciousness. He had beaten her so severely that her blood splattered on the bedroom walls. She woke up with her head in a toilet. Her six-year-old daughter described the assault in an interview conducted by a child-protection worker. The trial court admitted a videotape of this interview. Citing Crawford, the appellate court reversed the defendant’s conviction because the daughter was not available for cross-examination at trial.

2. In People v. Adams, the defendant appealed his conviction for inflicting corporal injury upon a cohabitant. The prosecution’s evidence showed that the defendant had battered his pregnant girl-friend, forced her to the floor, and pushed his knee down on her abdomen while she pleaded with him to spare her baby’s life. The victim gave a statement to police on the day of the incident, but the prosecution was not able to subpoena her as a trial witness. The prosecution introduced her hearsay statements to the police in lieu of her live testimony at trial. The appellate court vacated the defendant’s conviction, holding that the admission of the victim’s hearsay statements violated Crawford.

3. In People v. Kilday, the jury found the defendant guilty of battering and torturing his girlfriend. Evidence introduced at trial showed that the defendant had cut the victim repeatedly with pieces of glass. He had also burned her with an iron on several occasions. She gave a statement to the police on the day of the defendant’s arrest, but she later refused to cooperate with the prosecution, indicating that the defendant had threatened to retaliate against her. The prosecution relied on her hearsay statements to police, and the appellate court vacated the conviction under Crawford.

4. Has Crawford impeded domestic violence prosecutions?

The Crawford dissenters said: “The Court grandly declares that “[w]e leave for another day any effort to spell out a comprehensive definition of ‘testimonial’. But the thousands of federal prosecutors and the tens of thousands of state prosecutors need answers as to what beyond the specific kinds of “testimony” the Court lists, is covered by the new rule. They need them now, not months or years from now. Rules of criminal evidence are applied every day in courts throughout the country, and parties should not be left in the dark in this manner.”

Welcome to the dark. Let us see if together we can shed light.

Why did the Supreme Court do this? Were the justices of the majority hostile to the women’s movement, to the movement to protect children from abuse?

No, this was a lawyer’s victory, lawyer in the sense of lover of the elegance of law, lover of the concept of a constitution that makes sense in principle, not just in application.

Let me tell you the story of the confrontation clause. It starts way back in English history, like 1600, with the story of Sir Walter Raleigh, who was prosecuted for conspiring to kill the monarch on the accusation of his confederate, who confessed while in captivity in a tower of London. His confession was offered to the court through the testimony of the scribe who took it down and authenticated the paper and signature on which it was written. Raleight objected: “What is this! Would you convict an Englishman on the basis of a piece of paper? Bring Cobham before me. Let him accuse me to my face. Then shall I stand convicted before you. Without that you have nothing but tissue.” Well, to make a long story short, they convicted and executed him, thus creating a powerful story of injustice that rattled down through the centuries to take shape in the great principle of our American Bill of Rights: “In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.”

Ah, but what does this great principle mean? Did the court’s round about the time of the adoption of our constitution tell us? Why, no. There were no confrontation opinions of significance for more than one hundred years after its adoption, not until 1895.Pause to consider, what would explain that?

Answer is, we had no intermediate federal appellate courts for the first hundred plus years of our constitutional history. The Supreme Court was the only one, and reviewed district courts only for matters of jurisdiction. If the district judge had jurisdiction to do what he did, no problem. Trial judge’s had complete jurisdiction to rule on objections to evidence. Denial of a right of confrontation was not a basis for appeal. This changed in 1891 when intermediate appellate courts came into the picture, because now trial rulings were reviewed.

First came United States v. Mattox, 1895, a federal criminal case that arose in Indian Territory, in which Mattox, in his first trial, was convicted of murder based on the testimony of two eye witnesses. Taking advantage of new appellate process he got his conviction reversed and sent back for new trial. At his second trial the prosecutor had a problem. His two eye witnesses were both dead. Best he could do was read their testimony from the transcript of the first trial. At which point Mattox stands up and yells ”
“What is this! Would you convict an American on the basis of a piece of paper?” (Not really, but you get the idea.)

Confronted for the first time with the Confrontation question, the Supreme Court reasoned that the evidence presented through the transcript was pretty good because the prior testimony had been cross examined at the time it was given, and even though it was hearsay in the second trial, it was a lot better than other hearsay that was being admitted back when the Confrontation Clause was adopted, namely the dying declaration, so okay, no confrontation problem. This was not exactly a ringing principle.

After Mattox there was no real action on the Confrontation Clause until 1963, when Justice Black and the Warren Court lit it afire, holding in Pointer v. Texas that the constitution requires the accusation of an accuser to be cross examined. After that, every criminal defense lawyer knew enough to claim a constitutional violation whenever hearsay was admitted against his client. Hearsay was being routinely admitted under more than a dozen hearsay exceptions complete with subparts. Either all of that was unconstitutional or these hearsay exceptions would have to be constitutionally justified one by one.

Justice Harlan, for whom I clerked in 1966, saw the danger as the ganglion of hearsay. He looked in vain for a principle to follow but could find none. Eventual sad resolution came from Justice Blackmun in 1980, when he resolved this ganglion hearsay threat to the coherence of constitutional principle by complete surrender to it. He simply declared that all firmly rooted hearsay exceptions were constitutional without need for constitutional rationalization.

And so a mess, devoid of principle, confused at fundamental levels.

Now comes the Crawford sword of principle, loosed without regard for where it falls.

Is there an island of safety for prosecutors who want to be sure they have a solid case? Yes, there appears to be.

To prosecutors: Assume I am speaking to you in your role as decision maker on the question whether or not to prosecute. Is it your policy to prosecute child abusers and wife beaters to the limit of the law? Or are there circumstances in which the best interest of the child who has been abused or the woman who was beaten would be to have the prosecution go away?

Think first of Crawford speaking to that time between complaint to you as prosecutor and decision to indict. As careful and conscientious prosecutor you must explain to the victim that evidence of her accusation, to be heard in law, must come directly from her under circumstances in which the accused has effective opportunity to cross examine.

You should explain the process. Indictment begins the process, followed by some form of preliminary or probable cause hearing, at which the victim will be required to testify and at which the accused will have opportunity to cross examine. Your most cautious approach assumes that if your victim won’t testify at this hearing, then you haven’t got a case.

Coming back to the time when you are explaining this to the victim, you should also make clear that the constitutional confrontation principle gives the victim the power to abort the prosecution by refusing to testify. You should assess whether this power puts the victim in further potential jeopardy from the abuser, and if so, either offer the law’s protection or abort the prosecution.

To defenders: Crawford makes the preliminary hearing a vitally important stage in criminal process, potentially equivalent to Daubert hearings on the admissibility of expert testimony. Here is likely your only opportunity to cross examine the victim. No jury is present. Think forward to the time of trial when the evidence of the victim’s testimony at the preliminary hearing is presented. How do you want that scene to go? This delicate question you now have to be ready to decide when you stand up to cross examine at the preliminary hearing. Preliminary is preliminary no more.

To judges: Crawford gives you power much as Daubert did. You are gatekeepers. Your task is to see that the prosecution’s case is strong enough to proceed to trial. Recognize that the safety of the victim may well turn on the clarity of your call. It is no plus for the victim to allow the prosecution to go forward if there is doubt about its adequacy in the absence the victim’s live testimony at trial. The extent of such doubt is the measure of the incentive to the accused to arrange the victim’s absence.

Adequate opportunity for cross examination offers a circle of light in Crawford’s darkness. Whether or not a statement is ‘testimonial’, if the statement was made subject to crossexamination, no problem.

What makes a statement ‘testimonial’, thus invoking Crawford’s dictate that it be subject to cross examination? Do we ask that question from the subjective viewpoint of the declarant of the statement, or from the viewpoint of the law enforcement system? — From the viewpoint of the innocent child speaking to a caring social worker, or from the viewpoint of the prosecutor whose network for gathering testimonial evidence extends to all such consultation?

To answer this question, ask another. Crawford causes great potential dislocation to prosecutorial practices of the past. Should the strategy of prosecutors and lower courts be to resist the change as much as possible by interpreting ‘testimonial’ as narrowly as possible, preserving as much of past prosecution practice as possible? Or should the strategy go the other way by recognizing that the brightest line produces the cleanest rule, in this case a rule that requires cross examination of any accusatory statement made to law enforcement’s information gathering network?

My thanks to Tom Lininger, who just sent me his fine piece, Prosecuting Batterers After Crawford.

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