Crawford v Washington: The Supreme Court Opts for a New (Old?) Approach to the Confrontation Clause
| Author | Clifford S. Fishman |
| Published date | 01 December 2004 |
| Date | 01 December 2004 |
| DOI | 10.1350/ijep.8.4.240.60203 |
| Subject Matter | Case Comment |
Crawford v Washington: the Supreme
Court opts for a new (old?) approach to
the Confrontation Clause*
By Clifford S. Fishman
Professor of Law, The Catholic University of America Law School
1. The Confrontation Clause
T he Sixth Amendment to the United States Constitution is a code of criminal
trial procedure in miniature. Part of the Bill of Rights, it was proposed in
1789 by the first Congress to sit under the new Constitution, and was ratified
by the necessary three-fourths of the states in 1791. Its purpose was to preclude the
federal government from engaging in a variety of practices employed by the Crown
in the century or so before Independence.
One provision, known as the Sixth Amendment Confrontation Clause, reads: ‘In all
criminal prosecutions, the accused shall enjoy the right ... to be confronted with the
witnesses against him.’ (Its history and purpose will be discussed below.) Its scope
depends on how two of its terms are defined: ‘to be confronted’, and ‘witness’.
American courts have long agreed that ‘to be confronted’ means the right to be in
the courtroom with a witness, to look at him face-to-face, and to cross-examine
him.1
Thus, as Justice Scalia points out in Crawford v Washington,2 the scope of the
Confrontation Clause, at least to a textualist, really depends on how one reads the
* This case is also considered in H. L. Ho, ‘Confrontation and Hearsay: A Critique of Crawford’
(2004) 8 E & P 147.
1 ‘[T]he Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses
appearing before the trier of fact’: Coy v Iowa, 487 US 1012 at 1016 (1988).
2 124 SCt 1354 (2004).
2 4 0
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
(2004) 8 E&P 240–247
CONFRONTATION CLAUSE
word ‘witness’. The narrowest view restricts ‘witness’ to someone who actually takes
the stand and testifies at the defendant’s criminal trial. This would assure the
defendant the right to confront those who actually testify, but would leave all out-
of-court (i.e. hearsay) statements beyond that scope of the clause, regulated solely by
the rules of evidence governing hearsay. The broadest view is that the term ‘witness’
applies to anyone whose statement is offered against the defendant; the effect would
be to preclude the prosecutor from introducing any hearsay evidence at all, unless
the declarant actually testifies at trial—a view the United States Supreme Court has
‘long rejected as unintended and too extreme’.3 The middle view is that in addition
to in-court testimony, the clause applies to some, but not all, hearsay evidence.
American courts have always understood this middle approach to be the correct
one.4 The question, of course, is how to define which hearsay statements are subject
to the clause, and which are not.
2. The ‘trustworthiness’ approach
In 1980, in Ohio v Roberts,5 the United States Supreme Court, reasoning that the
underlying goal of the Confrontation Clause was to safeguard against the use of
untrustworthy evidence, held that a prosecutor could introduce a hearsay statement,
without also calling the declarant as a witness, so long as the statement has sufficient
‘indicia of reliability’.6 There were two ways to establish reliability. One was to show
that the statement came within a ‘firmly rooted’ hearsay exception. In various
decisions, the Supreme Court has stated that the following exceptions had ‘firm
roots’: the exceptions for business and public records;7 testimony at a prior proceeding
at which the defendant had an adequate opportunity to cross-examine the declarant;8
‘dying declarations’;9 co-conspirator statements;10 spontaneous utterances;11 and
statements made to medical personnel for purposes of diagnosis and treatment.12
If a hearsay statement did not fall within a ‘firmly rooted’ exception, a prosecutor
could demonstrate the statement’s reliability by making a ‘showing of particularized
guarantees of trustworthiness’.13 Only the statement itself and the circumstances
under which it was made could be considered in assessing whether the prosecutor
3 Ohio v Roberts, 448 US 56 at 63 (1980).
4 White v Illinois, 502 US 346 at 352 (1992); Ohio v Roberts, 448 US 56 at 68, n. 9 (1980).
5 448 US 56 (1980).
6 Ohio v Roberts, 448 US 56 at 66 (1980), quoting Mancusi v Stubbs, 408 US 204 at 213 (1972).
7 Ohio v Roberts, 448 US 56 at 66, n. 8 (1980).
8 This is the...
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