The Supreme Court has confused the right to confrontation with the right to cross-examination. Our constitution’s fundamental right to confrontation is now lost in a swamp of common-law hearsay. In Ohio v. Clark, presently pending decision in the Supreme Court, the Court has an opportunity to set matters right.
Confrontation and cross-examination are distinct rights. The right to confrontation speaks to the quality and legitimacy of the prosecution’s case in chief. The right to cross-examination protects the defendant’s right to defend.
The confrontation entitlement for which Sir Walter Raleigh fought was for the prosecution to prove his guilt by producing live sworn witnesses testifying from personal knowledge to his jury. This is the right to be confronted with the witnesses against you. This right, if contravened, is enforced by dismissing the charges against you at the close of the prosecution’s case-in-chief. It is a rule of production, not a rule of admissibility. It prevents the prosecution from basing its case on hearsay, whether it is ‘admissible’ hearsay or not. Hearsay declarants are not “the witnesses against” to whom our Confrontation Clause refers. Hearsay declarants are not trial witnesses since they never appear at trial; their reports, if admissible at all, may be used only to corroborate the testimony of the “witnesses against” the defendant but may not supplant the need for them. Hearsay may not serve as the foundation of the prosecution’s case.
The right to confrontation began in a god-fearing English shire coming together to try a defendant accused of the crime. Evolving from trial by battle or other forms of physical contest to public trial by jury, English jurisprudence settled upon a method for determining the defendant’s culpability that required the defendant’s accusers, upon oath before god to accuse him to his face. This act of confrontation occurred under the eye of the jury and community (who were, at first, the same body), who were charged with assessing and judging whether the witness’s oath was genuine: did he appear to fear god’s damnation for the sin of perjury? The presence at trial and taking of an oath by the witness was essential. Jurors must see the witness swear and testify in order to determine the truth — their ‘verdict’.
Raleigh’s call at his trial — “Bring Cobham before my face!” — was for just that procedural and basic right. Without Cobham to swear under oath and accuse him to his face before the jury, the jury could not judge the truth, and thus could not render valid verdict: “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) Reaction to the injustice of Raleigh’s conviction and execution in the absence of sworn live testimony crystallized ‘confrontation’ as a fundamental concept of fair trial.
In Raleigh’s time, fair defense had not yet emerged as a concept. Raleigh had no right call witnesses in his defense, or to testify himself. Nor did he have any right to cross-examine the prosecution’s witnesses. Hearsay admissibility rules which protect the defendant’s right to cross-examine emerged only later on with the development of the right to defend. But, with the emergence of hearsay rules came confusion as to the meaning of confrontation.
Although the high point of a trial comes when defense counsel cross examines the defendant’s accuser, it is wrong in both history and substance to think of the our constitutional ‘right to confrontation’ as a right of cross-examination. Distinct from the right of confrontation, a defendant’s right to cross-examine is protected by common law hearsay rules. The hearsay rule and its myriad exceptions seek to balance the probative value of a hearsay report without cross-examination against its potential for confusion and waste of time. Some hearsay is excluded, some is not. If admitted, the infirmities of the hearsay in the absence of cross-examination may be brought to the jury’s attention. Improper admission of hearsay at trial is not of constitutional moment unless it is essential to the prosecution’s case in chief. This use of hearsay denies the defendant his constitutional right of confrontation.
In 1895, the Supreme Court confused ‘confrontation’ with ‘cross-examination’ in a way that has left the law in shambles ever since. Treating confrontation as cross-examination transformed the legal focus of ‘confrontation’ from prosecution to defense. The justices misconceived the purpose of confrontation to be a rule of evidence designed to protect the right of cross-examination by requiring the exclusion of particular kinds of hearsay, rather than as a rule of production requiring the prosecution to prove its case-in-chief with live sworn testimony before the jury. The justices misread the text of the Confrontation Clause in three ways to accomplish that result, and they continue blindly to do so even today: (1) they transposed the right “to be confronted with” witnesses into a right “to confront” witnesses; (2) they interpreted “witnesses” to include people who are not present in court, e.g., hearsay declarants who do not testify before the jury; (3) they equated past cross-examination with present confrontation. With these three steps they transformed “the accused shall enjoy the right . . . to be confronted with the witnesses against him” to say “the accused shall enjoy the right to cross-examine the declarants of some subset of hearsay accusations reported against him.” Whether the Court defines the subset in terms of ‘guarantees of trustworthiness’ (Roberts), or as “testimonial” (Crawford), misses the point; each of these interpretations ignores confrontation’s procedural requirement of live sworn testimony to ensure the quality and legitimacy of the prosecution’s total case.
Crawford ‘testimonial’ formulation of a confrontation standard was misconceived from its inception, its vulnerability on clear display in Ohio v. Clark, now pending decision by the Court. Clark’s conviction and 28-year sentence for felonious assault rests on reported statements by a three-year old child made in response to his teacher asking who hit him. The child did not testify. Crawford has no answer for this case. As several of the justices recognized at oral argument, there is no way to determine the three-year-old’s testimonial intent. (Nor, for that matter, could he be adequately cross-examined even if he were to be produced.)
Whether a state may base its case solely on the absent child’s accusation is the real confrontation issue that Clark presents. This is not an issue of ‘admissibility.’ It has nothing to do with whether the child’s teacher is a ‘mandated reporter’ or whether the child’s hearsay is ‘testimonial’, which is how the case was framed by the ‘Questions Presented’ and argued by counsel. Approaching the Clark case from the perspective of Crawford reveals the bankruptcy and irrelevance of the Court’s current approach. The Supreme Court would do best to set Ohio v. Clark for re-briefing and re-argument on the issue that is actually in play: whether to overrule Crawford and re-establish the Confrontation Clause as a constitutional guarantee worthy of Sir Walter Raleigh.