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Some ruminations on Crawford

I had to go down to Madison Correctional on Friday to visit a client.  It's about 40 minutes west of Columbus.  The drive from Cleveland to Columbus isn't the best, but it's not the worst, either.  (The trip from Columbus to Cincinnati, on the other hand, is about three steps up from an Apache torture session.)  Sometimes spending six hours in a car gives you time to think about stuff. 

Here's one of the things I thought about:  whatever happened to Winona Ryder?  Cute as a button, has some nice movies, then gets caught shoplifting about $5,000 worth of stuff in 2001, and pretty much disappeared.  Elliot Spitzer, on the other hand, looks like he fell out of the Ugly Tree and hit every branch on the way down, has to resign as governor of New York because he spent $80,000 on hookers, and two years later he's got his own TV show.  Oh, well, as they say, fair is where your pig wins a ribbon.

One of the other things I thought about was a comment by Justice Scalia in the oral argument in Michigan v. Bryant last week.

Well, hell, it was a six-hour trip.

As I explained in my post on Bryant last week, the case presents the question of whether statements by a wounded victim, normally admissible under the hearsay exception for excited utterances, were also "testimonial" and thus inadmissible.  The particular comment of Scalia's was his observation that the Confrontation Clause doesn't pertain to reliability, it pertains to the opportunity to cross-examine.  Not that Scalia is unconcerned with reliability; he just believes that the way to achieve that is by allowing confrontation.

And in fact, that's pretty much the basis for the right.  Unlike most of the civilized world, the Anglo-American justice system is adversarial, based on the idea that the correct result will emerge from the cauldron of legal combat.  Central to that is the concept of cross-examination, the "greatest engine for the discovery of truth ever devised."  The right to confront and cross-examine one's accusers represents a policy decision that evidence which is not subjected to cross-examination is not reliable.

The problem with that argument, though, is that there is a large body of evidence which we do not require be subjected to cross-examination:  those which fall within hearsay exceptions.  Still, reliability is the key there, too; those exceptions were developed with the view that we can dispense with cross-examination in those instances because we deem the evidence sufficiently reliable that cross-examination serves no purpose.

And that's where Scalia's analysis is running into problems.  In Crawford, he cited a lengthy history of abuses which resulted in the adoption of the the Confrontation Clause, mainly the use of "ex parte statements":  examinations made by government officials outside the presence of the accused, which were then introduced at trial.  The statement in Crawford was a classic example of that:  it was a statement that Crawford's wife had made to the police, and was admitted under the declaration against penal interest exception to the hearsay rule when the wife couldn't testify because of the spousal privilege.

But as Scalia's opinion in Crawford indicates, the use of ex parte statements was heavily criticized at the time on grounds of reliability.  (In fact, getting back to the "adversarial" system, the practice of ex parte statements to magistrates was borrowed from the law practiced on the European continent, which regarded -- still does, for that matter -- cross-examination as unnecessary in those instances.)  Even Crawford's wife's statement wasn't automatically admissible; that exception requires circumstances showing reliability (in Ohio, such a statement isn't admissible unless "corroborating circumstances clearly indicate the truthworthiness of the statement"), and the Washington appellate court had thrown out the statement on that very basis.

It used a nine-factor balancing test to do so, though, and the state supreme court used the same test in coming to an opposite conclusion, which leads to the second part of Scalia's analysis.  It's not that he finds reliability an irrelevant concern, it's just that aligning the Confrontation Clause with the Hearsay Rule provides a framework that "is so unpredictable that it fails to provide meaningful protection."  Using the hearsay rule as a benchmark for reliability would allow shifting evidentiary rules to define the scope of the confrontation right. 

Nowhere is the danger of this more apparent than in the relaxation of the hearsay rule for statements of children in sex cases, a vestige of the molestation hysteria of the 1980's.  The result is that virtually any statement by a child comes in under the "excited utterance" exception.  What's more, most of the hearsay rules make an a priori assumption of reliability:  if the statement qualifies under the rule, it's deemed admissible even if there are concerns about the reliability of that particular statement.  For example, if there's evidence that a child's inculpatory statement might be the result of pressure or prompting by the mother, that goes to the weight to be given to the statement, not to its admissibility.  We assume that the right to confront and cross-examine the mother will make up for the loss of the right to confront and cross-examine the child, the one who actually made the statement.

Still, divorcing the confrontation right from considerations of reliability is bound to run into problems, as it did in Bryant.  There's no question that if the victim in Bryant had given the shooter's name to the gas station owner or some passerby, instead of to the police, it would have been admissible under the excited utterance exception.  There's nothing to suggest that the statement was any less reliable by virtue of having been given to the police rather than to the owner or a passerby.  Having the admissibility turn on to whom the statement was made, rather than on its inherent reliability, could be Crawford's ultimate undoing.

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