The Supreme Court has been conflating ‘confrontation’ with ‘cross-examination’ ever since 1895, when the Court decided its first confrontation case, Mattox v. United States. Generations of Supreme Court justices have since mistaken the function of constitutional ‘confrontation’ to be protection of a defendant’s right of cross-examination.
Confrontation is not an exclusionary rule of admissibility; it is a rule of production that mandates live witness testimony as the primary mode of proof in criminal trials. A jury’s verdict of criminal guilt must rest on the sworn direct-knowledge testimony of witnesses to the jury. There is no constitutional objection to hearsay offered to corroborate direct knowledge testimony. But hearsay alone, even good hearsay, may condemn no man.
Confrontation requires the presence of a witness to accuse; it does not dictate the method by which the witness is to be tested. Its concern is not for improperly admitted evidence but rather with the quality of the body of evidence that remains as the basis for jury verdict. Raleigh’s call at his trial in 1596 — “Bring Cobham before my face!” — was for this fundamental procedural right of fair jury trial.
“If you proceed to condemn me by bare inferences, without an oath, without a subscription, without witnesses, upon a paper accusation, you try me by the Spanish inquisition.” (Jardine 419).
The language of the confrontation clause clearly supports this reading. The clause articulates “the right to be confronted with the witnesses against”, not the right to confront the witnesses against. Maddox, Pointer v. Texas (1963), Ohio v. Roberts (1981), Crawford v. Washington (2004), Ohio v. Clark (2015) and all of the ‘confrontation’ cases in between miss this crucial point. Neither ‘testimonial’ nor ‘unreliable’ nor any other standard for judging the admissibility of an item of evidence to the body of evidence submitted to the jury gives any assurance whatever of the integrity of what remains. Raleigh’s cry was for dismissal of the prosecution, not for the exclusion of any item of proof.
The history the clause likewise bears this out. In Raleigh’s time, the concept of a fair defense had not yet emerged. Raleigh had no right to cross-examine. Raleigh’s claim was that Cobham should be produced to swear his accusation to the jury. His argument was that, without Cobham or any other witness with direct knowledge to accuse him to his jury, his jury could not legally convict him. Its verdict would rest (and did ultimately rest) entirely on hearsay and innuendo.
Raleigh’s legacy was the recognition that proof of guilt by live-witness direct-knowledge testimony sworn and spoken to the defendant’s jury is a fundamental legal procedural requisite of fair jury trial. But by the time the Supreme Court first applied the Confrontation Clause of our Bill of Rights, the clarity of legal understanding of the principle had become obscured. In the centuries since Raleigh’s trial, defendants achieved more rights at trial, their lawyers developed the art of cross-examination, and judges developed common law hearsay admissibility rules to protect the practice of it. By the turn of the twentieth century, cross-examination was lauded as the defense’s best response to the witnesses produced by the prosecution. The prosecution’s production of the testimony of an accuser coupled together with defense counsel’s cross-examination formed the central dramatic clash of a criminal trial. Cross-examination, although not mentioned in the Constitution, became understood as a due process right of both prosecution and defense to test the credibility of witnesses, as a matter of due process.
But cross-examination should never have been confused with the constitutional right of confrontation. Cross-examination is a means of confronting a witness but is NOT confrontation of the defendant BY a witness. The right to cross-examine amplifies the importance of confrontation’s production requirement, but it surely does not displace it as a constitutional essential to fair trial.
Not until 1895 did our Supreme Court address the meaning of the constitutional Confrontation Clause. For the first time the Court was called upon to distinguish between confrontation as a constitutional rule and hearsay as a common law rule of evidentiary admissibility. This occurred because the Court was, for the first time, faced with a full appeal from a criminal trial. Prior to the creation of the intermediate courts of appeal in 1892, Supreme review of district court criminal trials was limited to issues of jurisdiction. Rulings on objections to the admissibility of given items of evidence were the exclusive province of the trial judge. The creation of the appellate federal courts opened these issues to review but offered no clear distinction between them.
The Court totally failed to get it right. Instead, the Mattox Court simply assumed constitutional confrontation to be a hearsay exclusionary rule, and declared previously cross-examined statements to be an exception to it. The Court framed the question in terms of admissibility — whether the trial judge had committed error by admitting the reporter’s notes of the testimony of the two witnesses at the former trial who had since died.
To say that a criminal, after having once been convicted by the testimony of a certain witness, should go scot free simply because [the prosecution committed reversible error in the defendant’s first trial and delayed so long in retrying him that by the time of his new trial before a jury untainted by the prosecution’s mistake the prosecution’s witness died] would be carrying his constitutional protection to an unwarrantable extent. The law in its wisdom declares that the rights of the public shall not be wholly sacrificed in order that an incidental benefit [emphasis supplied] may be preserved to the accused.
On this basis, without any attention whatever to the actual text of the clause, the Mattox Court simply announced that previously cross-examined testimony satisfies the constitution’s demand for confrontation. “The substance of the constitutional protection is preserved to the prisoner in the advantage he has once had of seeing the witness face to face and of subjecting him to the ordeal of a cross-examination [at a previous trial before a previous jury].”
More than a century of confrontation/hearsay confusion has followed. Our Supreme Court has tried multiple times to articulate a right of confrontation as a coherently distinct constitutional hearsay exclusionary rule. It cannot be done. One might have hoped that by 2004, the Crawford Court, in overruling Ohio v Roberts, would at last have realized the fundamental conceptual error initiated in Mattox. But, as harsh as Justice Scalia’s Crawford opinion is in criticizing Ohio v. Roberts, Scalia totally bought into the Mattox frame:
Our leading early decision [Mattox] involved a deceased witness’s prior trial testimony. In allowing the statement to be admitted, we relied on the fact that the defendant had had, at the first trial, an adequate opportunity to confront the witness.
Note how Scalia accepted and used transposition of the right “to be confronted with” accusing witnesses to become a right “to confront the witness”. He, like all the justices before him, simply assumed the issue to be one of admissibility of a particular item of offered hearsay, unrelated to the proof-strength of the total prosecution case. Crawford, like Roberts before it, sought to describe a boundary line between admissible and inadmissible hearsay. Moreover, to implement his ‘testimonial’ approach, Scalia blatantly misinterprets ‘witnesses against’ to include, not just witnesses who testify in court (as used elsewhere in the sixth amendment in referring to “witnesses” the defendant is entitled to call to testify to the jury). ‘Witnesses against,’ for Scalia, includes also all declarants of hearsay accusations against the defendant. Either way, whether a hearsay statement is ‘testimonial’ or ‘unreliable’ misses confrontation’s point, which is assurance that jury verdicts rest on live-witness testimony.
Ohio v. Clark, this term, is only the latest demonstration of the Court’s hearsay/confrontation confusion. The Court chose to address the question whether “a child’s out-of-court statements to a teacher in response to the teacher’s concerns about potential child abuse qualify as “testimonial” statements subject to the Confrontation Clause?” If so, and if the teacher were to be considered a ‘mandated reporter’ making her questioning of the child equivalent to a police interrogation, then Crawford would require their exclusion. The Court clearly did not want to go in that direction. Instead it made its own factual findings neither the child in making his statement nor his teachers in eliciting it had as their primary purpose prosecuting Clark. Just why the constitutional fair trial rights of a defendant should turn upon the mixed motives of either a three year old child or his teachers is neither explained nor justified.
Ohio v. Clark thus stands as a case in which the defendant was sentenced to 28 years in prison when not a single witness to his alleged crime ever testified at his trial, and leads us right back to Raleigh, but in Clark, Cobham is now a three-year old legally incompetent child.
Fern (HLS ’71) & Professor Charles (HLS ’63) Nesson
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