Understanding the Confrontation Clause

The Court held in Crawford v. Washington that testimonial evidence is inadmissible when it originates from a source unavailable for examination by the defendant. 541 U.S. 36 (2004). The companion case Davis v. Washington concluded that statements made in "circumstances that objectively indicate that there is no ongoing emergency and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution" are testimonial in nature. 126 S. Ct. 2266 (2006). The Court, through the standards articulated in Crawford and Davis renders a broad interpretation of testimony to the Confrontation Clause to bar all hearsay statements where the declarant is unavailable and where the defendant has not had an opportunity cross-examine the declarant. Statements regarding the defendant were gathered from Mr. Har's family members to be introduced specifically against him at trial as part of the prosecution's case. They are clearly testimonial in nature under Crawford and Davis. Since the declarants were not available for cross-examination by Mr. Har, they were inadmissible. As the Court is clear that the Sixth Amendment affords a defendant in a criminal trial the right to confront those who bear witness against him, the denial of this right to Mr. Har is a violation of his Constitutional right of confrontation. Whether "limitations on cross-examination are so severe as to amount to a violation of the confrontation clause is a question of law reviewed de novo." United States v. Vargas, F.2d 701, 903 (1991).
A. The Supreme Court's construction of the Confrontation Clause supports the view that out of court testimonial statements unavailable for cross-examination are inadmissible.

Testimonial statements made outside of court by a witness unavailable for examination by the defendant are not admissible. As part of the bedrock procedural guarantee that applies to both federal and state prosecutions, the Court has held that "the Sixth Amendment's Confrontation Clause provides that 'in all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him.'" Crawford v. Washington, 541 U.S. 36, 42 (2004). The Court has clearly articulated in Crawford v. Washington that where "testimonial evidence is at issue...the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination." Id. at 68. Specifically, where circumstances objectively indicate that "there is no ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution," the statements are testimonial and should be exempt except where the defendant has an opportunity for cross-examination. Crawford,126 S. Ct. 2266, 2274 (2006). The Circuit Court was correct when it found that the admission of statements made to the Government's psychiatrist constituted reversible error. (Tr. 101).

The question before Crawford was whether a recorded statement to the police played at trial describing a stabbing complied with the Sixth Amendment's guarantee that, "in all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him" even though defendant had no opportunity to cross-examine. Crawford v. Washington 541 U.S. 36, 38 (2003). Crawford held that the Confrontation Clause bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had a prior opportunity for cross-examination." 541 U.S. 36, 53-54 (2003). This notion that the defendant enjoys the adequate opportunity to cross-examine his accuser is an important part of the legal system and is deeply rooted in history. See Mattox v. United States, 156 U.S. 237 (1895) (in allowing admission of a statement, the Court relied on the fact that defendant had opportunity to confront deceased witness at the first trial); Mancusi v. Stubbs, 408 U.S. 204 (1972) (prior trial or preliminary hearing testimony is admissible only if the defendant had an adequate opportunity to cross-examine); California v. Green, 399 U.S. 149; Roberts v. Russell, 392 U.S. 293 (1968) (accomplice confessions excluded where defendant had no opportunity to cross-examine). However, the Court's historical analysis of the Confrontation Clause not only addressed the omnipresent state of the Clause in American case law but also considered its jurisprudential purpose.

Historically, the "principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused." Crawford v. Washington, 541 U.S. 36, 50 (2003). The right to confrontation was a direct reaction to practices by the "Crown deployed in notorious treason cases like [Sir Walter] Raleigh's" where he was tried and sentenced to death based on the letter accusing him of treason from a witness unavailable for cross-examination by Raleigh. Id. Justice Scalia wrote: "In the face of Raleigh's repeated demands for confrontation..." among them the fact that his accuser's statements were self-inculpatory and that the statements were not made in the heat of passion, he was sentenced to death. Crawford v. Washington, 541 U.S. 36, 63 (2003). The Court reasoned that "it is not plausible that the Framers' only objection to the trial was that Raleigh's judges did not properly weigh these factors before sentencing him to death. Rather, the problem was that the judges refused to allow Raleigh to confront [his accuser] in court, where he could cross-examine him and try to expose his accusation as a lie." Id. at 68.

The Court's in-depth discussion of Raleigh and the inability to cross-examine his accusers framed "the Sixth Amendment [to] be interpreted with this focus in mind." Id. at 50. The Framers understood that "leaving the regulation of out-of-court statements to the law of evidence would render the Confrontation Clause powerless to prevent even the most flagrant inquisitorial practices." Id. at 51. Hence, they infused the Sixth Amendment with the right of confrontation that existed in the contemporary common law which "conditioned admissibility on an absent witness's examination on unavailability and a prior opportunity to cross-examine.") Id. at 54.

An expansive reading of the confrontation right is appropriate in light of the historical record. A strict prohibition of out of court testimony made by declarants unavailable for cross-examination reflects the Framers' understanding that "judges, like other government officers, could not always be trusted to safeguard the rights of the people... By replacing categorical constitutional guarantees with open-ended balancing tests, we do violence to their design." Crawford v. Washington, 541 U.S. 36, 67 (2003). The Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross examination." Id. at 53.

Therefore, while the Crawford standard, which applies to "witnesses" against the accused-in other words, those who "bear testimony," does not offer a comprehensive definition of the term "testimony," the Court provided various formulations of the term in harmony with this historical evidence. Id at 53. It opined that "testimony...is typically 'a solemn declaration or affirmation made for the purpose of establishing or proving some fact...An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." Id. In addition, the Court's intention to construe "testimony" and thus, the Confrontation Clause broadly is evident is obvious. In addition to its assertion that "statements taken by police officers in the course of interrogations are...testimonial under even a narrow standard...," possible testimony may also include "materials such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially." Id. at 52. Moreover, the tenor of this broad interpretation in Crawford is carried over to Davis v. Washington where the Court offers an additional, clarifying definition of the term "testimony."

The Court held in Davis v. Washington that "statements are non-testimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." 126 S. Ct. 2266, 2274 (2006). In Davis, the Court considered two cases, McCottry and Hammon involving 911 calls later played at trial against the respective defendants. In McCottry, Michelle McCottry placed a 911 call after she had been assaulted by the petitioner, who had fled the scene. Davis v. Washington, 126 S. Ct. 2266, 2271 (2006). She did not testify at trial but the recording of the call was admitted and played for the jury. Id. In the second case Hammon, police had responded to a reported domestic disturbance. Id. When the police got there, Amy Hammon told them nothing was wrong. Id. When the police officers interviewed Amy away from the petitioner and she admitted that he had assaulted her. Id. She then completed and signed a battery affidavit at a police station. Davis v. Washington, 126 S. Ct. 2266, 2272 (2006). The affidavit was admitted at trial against her husband even though Amy did not appear. Id.
The use of the primary purpose test to delineate testimonial vs. non-testimonial statements is in step with the character of the Confrontation Clause itself. Application of the primary purpose test to the facts here resulted in McCottry's statement being non-testimonial and Hammon's statement testimonial. This application of the primary purpose test to Hammon and McCottry revealed only an abbreviated analysis that at first glance are too specifically tailored to the facts of the case to truly safeguard against the Confrontation Clause main concern at curtailing ex parte abuses. Distinctions are made between a statement taken at the time and one taken much later and also emergency vs. non-emergency. However, the test is comprehensively defined in a comparison between Davis, McCottry and predecessor Crawford, where the Court took into account four factors. The first factor mentioned by the Court is immediacy. The declarant in McCottry was "speaking about events as they were happening." Davis v. Washington, 126 S. Ct. 2266, 2276 (2006). In Crawford on the other hand, Sylvia Crawford's interrogation took place hours after the events she described had occurred. Id. Second, the Court considered the state of mind of the declarant. The Court wrote that the McCottry's call was "plainly a call for help against bona fide physical threat." Id. This was not the case in Crawford as Sylvia Crawford was at the police station giving a statement to police officers, fully cognizant of the fact that she was there to give a statement. Id. Third, the Court contemplated the objective intent of the questioner. The Court explained that, "the nature of what was asked and answered in Davis, again viewed objectively, was such that the elicited statements were necessary to be able to resolve the present emergency..." and hence not for any other purpose. Id. Finally, the Court considered the formality of the questioning noting that the Crawford interview was conducted in a police station while McCottry's interview in Davis was over the telephone through a phone call that she had placed herself. Id. The inclusion of these factors in its analysis counteracts the specificity of facts with which the Court analyzes the problem. As they stand, the factors are not explicitly included in the primary purpose test. Rather, they exist as a set of guidelines that are not rigid or with any particular factor weightier than the other. The Court is interested in assembling a complete picture of the circumstances at issue to consider situations that may not be testimonial on its face but testimonial in substance. This method deals directly with problems that are factually complicated and unclear. Ultimately, what this piecemeal evaluation of the circumstances that the Court uses in its primary purpose test suggests is that the Court is at root concerned with the civil-law ex parte abuses that are talked about extensively in Crawford.

The primary purpose test is just one indicator of the broad interpretation the Court has given the Confrontation Clause. This testimonial standard in Davis is careful to consider not any one aspect of a statement in its testimonial evaluation. The flexibility of the primary purpose test renders a relatively inclusive Confrontation Clause which would incorporate a wide range of statements as testimony as being excludable absent cross-examination. The Court's expansive reading of the Confrontation Clause is unmistakable in Davis. In footnote one of the Court's opinion, the Court stated that even though it refers to interrogation because the statements of the case before the court presented it with products of interrogations, it does not imply that "statements made in the absence of any interrogation are necessarily non-testimonial." Davis v. Washington, 126 S. Ct. 2266, 2274 (2006). In addition, the Court reiterated what it said in Crawford, that the Court's use of the term "interrogation" is "colloquial" rather than the "technical legal sense." Id. at 2273. It is apparent that the Court was intent on maintaining the historical and broad interpretation of the right to confrontation that it found so persuasive in Crawford, specifically noting in Davis that "Framers were no more willing to exempt from cross-examination volunteered testimony or answers to open-ended questions than they were to exempt answers to detailed questions." Id. at 2274.

In Crawford, the Court offered an extensive historical analysis of the origin of the right to confrontation and how it informs our modern understanding of the Confrontation Clause. The historical understanding highlighted the significance of the right to confrontation and the issues of unverifiable accusations and ex parte proceedings that it was created to counter. Most importantly, the Court reasoned that the right to confrontation in the common law applied to a very general category of testimonial statements. As a result, our modern conception of Confrontation Clause built by Framers who were aware of the right's historical function, is relatively inclusive of different types of statements as testimonial. Since it did not define comprehensively the term "testimonial," the Court did so in Davis. In Davis, while the Court now offered a primary purpose test and four implicit factors to evaluate and determine whether something is testimononial, this testimony standard it announced remained true to the rationale behind the Confrontation Clause and the common law right to confrontation. The testimony standard in Davis maintained the framework of the right to confrontation that sought to exclude statements created under situations that were essentially ex parte proceedings. Read together, Crawford and Davis favor an expansive reading of testimony to be included under the Confrontation Clause.