Covering the Front and Back Pages of the Newspaper
March 10, 2004
LAW: Confronting The Sixth Amendment
Really, really big news from the Supreme Court Monday, although thus far among the major bloggers and blawgers I've seen only a brief, non-analytical writeup by Eugene Volokh and a bare-bones announcement from Howard Bashman (Tung Yin, call your office!). The Court's decision in Crawford v. Washington, No. 02-9410 (U.S. Mar. 8, 2004) amounts to a revolutionary reassessment of the Confrontation Clause of the Sixth Amendment, one that will have wide-ranging effects on the criminal justice system. Justice Scalia wrote the opinion for a 7-2 Court; the Court's decision to reverse the conviction was unanimous, but Chief Justice Rehnquist, joined by Justice O'Connor, disagreed with the Court's analysis.
The Sixth Amendment provides: “[i]n all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.” Crawford holds that the Clause bars the admission in criminal prosecutions of prior testimony unless the witness is unavailable and there was a prior opportunity for cross-examination. In so doing, the Court rejected the prior rule of Ohio v. Roberts, 448 U.S. 56, 66 (1980), under which such testimony, to be admitted, "must either fall within a 'firmly rooted hearsay exception' or bear 'particularized guarantees of trustworthiness.'". It was the latter part of the Roberts test -- allowing un-cross-examined prior testimony to be admitted if it was deemed to have sufficient indicia of reliability -- that prompted Justice Scalia's characteristically pithy observation that
Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes.
Slip op. at 27. The Court described the scope of its holding as follows:
Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law-as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. We leave for another day any effort to spell out a comprehensive definition of “testimonial.” Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.
Slip op. at 33 (emphasis added). The Court thus left unsettled such traditional hearsay exeptions issues as dying or other spontaneous declarations, and was also careful to note that its holding did not address non-hearsay statements such as statements in furtherance of a conspiracy.
Crawford is interesting academically; a good constitutional law professor could find much to discuss in the way Justice Scalia proceeded, after determining that the language of the Clause did not answer the questions at bar, to offer a historical exegesis of why the Framers of the Constitution feared inquisitorial practices under which out-of-court statements could be given to judicial or law enforcement officers and then admitted as evidence without cross-examination, as well as his explanation of why the Court should depart from its prior decision in Roberts: "[t]he framework is so unpredictable that it fails to provide meaningful protection from even core confrontation violations." Then there's his enviably concise explanation of how the new rule could be squared with past cases: "If nothing else, the test we announce is an empirically accurate explanation of the results our cases have reached."
But its real significance is in practice, where the decision - while it may handcuff law enforcement in some cases - will also do much to prevent abuses in the system:
One prime example of that can be found in Crawford itself, where the testimony admitted was a statement given by the defendant's wife to police; the prosecution was able to introduce the statement in spite of the fact that she could not be called to testify due to spousal immunity. A quick look at her statement, implicating her husband in a stabbing and partially undermining his self-defense claim, shows the problem:
“Q. Did Kenny do anything to fight back from this assault?
The Court found this deeply problematic:
Sylvia Crawford made her statement while in police custody, herself a potential suspect in the case. Indeed, she had been told that whether she would be released “depend[ed] on how the investigation continues.” App. 81. In response to often leading questions from police detectives, she implicated her husband in Lee’s stabbing and at least arguably undermined his self-defense claim. Despite all this, the trial court admitted her statement, listing several reasons why it was reliable. In its opinion reversing, the Court of Appeals listed several other reasons why the statement was not reliable. Finally, the State Supreme Court relied exclusively on the interlocking character of the statement and disregarded every other factor the lower courts had considered. The case is thus a self-contained demonstration of Roberts’ unpredictable and inconsistent application.
As Justice Scalia noted, dispensing with one of the 'reliability' factors, "The Framers would be astounded to learn that ex parte testimony could be admitted against a criminal defendant because it was elicited by 'neutral' government officers." He also added a rather lengthy admonishment about the hazards of such evidence to liberty, and the limitations on courts' ability to provide meaningful protections by using fact-intensive balancing tests:
We readily concede that we could resolve this case by simply reweighing the “reliability factors” under Roberts and finding that Sylvia Crawford’s statement falls short. But we view this as one of those rare cases in which the result below is so improbable that it reveals a fundamental failure on our part to interpret the Constitution in a way that secures its intended constraint on judicial discretion. Moreover, to reverse the Washington Supreme Court’s decision after conducting our own reliability analysis would perpetuate, not avoid, what the Sixth Amendment condemns. The Constitution prescribes a procedure for determining the reliability of testimony in criminal trials, and we, no less than the state courts, lack authority to replace it with one of our own devising.
I should note that there is a distinct overtone in his caution of concern over the War on Terror. Which does concern me; but it also points out that, in cases where the exigencies of war collide head-on with the need for protecting civil liberties, we may well be better off leaving cases out of the courts entirely.
Of particular practical relevance, the Court specifically disapproved of the practice of admission of plea allocutions, noting such cases as an example to show that "Courts have invoked Roberts to admit other sorts of plainly testimonial statements despite the absence of any opportunity to cross-examine" and overruling numerous Circuit precedents (including several cases in the Second Circuit, where I practice) in the process. Slip op. at 29. Of more specific interest to white-collar practitioners, the disapproval of admission of plea allocutions without cross-examination may make it extremely difficult for prosecutors to introduce the guilty pleas of corporations, an already controversial practice.
Admissions of prior testimony, including allocutions in addition to the other items identified by the Court, have become such routine features of the criminal justice system that Crawford is sure to spawn numerous challenges to existing convictions (although the dissent observed that such challenges may be subject to harmless error analysis).
To give an example of the way in which admissions of plea allocutions can be abusive, let me examine a case I worked on a few years ago (this is all public record). The Justice Department threatens charges against W Corp. W Corp., for various reasons (it's a business in a heavily regulated industry and on the eve of a merger), is under intense economic pressure not to fight the case, and enters a guilty plea and allocution to the charges (the terms of which are negotiated with the prosecutors), pointing the finger at employees X, Y and Z.
X, Y and Z are then indicted. Close to trial, X pleads guilty. As with W Corp., X has to enter a plea allocution that is acceptable to the government, so there's an opportunity beforehand for the prosecutors to influence the terms in which X pleads guilty, so as to maximize its usefulness at trial against Y and Z. Now, here's the tricky part: under the rules of evidence, the government needs to show that X is unavailable to testify so they can use his un-cross-examined allocution instead. So they argue that, because he hasn't been sentenced yet, X still has a Fifth Amendment right not to testify to the facts surrounding his guilty plea. Of course, the only way his testimony can hurt him at sentencing is if the same prosecutors who cut the deal with X choose to do so - an unlikely eventuality indeed. But, OK, from X's perspective, this is still a valid objection. But then, the government could grant X use immunity, promising that, unless he perjures himself, they can't use his testimony at sentencing. But the federal courts, at least, have accepted the prosecution's separation-of-powers argument that they can't be compelled to grant use immunity.
Result: simply by taking advantage of the timing of sentencing, any time a co-defendant pleads guilty, the prosecutors can manipulate the situation to have his plea allocution introduced in evidence without cross-examination and - an added bonus - without the need to present a guy who pled guilty as a credible witness before the jury. (In our case, we succeeded in excluding W Corp.'s allocution, but not X's).
Now, I'm very sympathetic to the idea that a co-defendant who pleads guilty can have testimony of real probative value, and I can understand why prosecutors prefer to be able to cut deals that don't require continuing cooperation on the stand; now, they will have to do so. But to allow this whole process to go on as it has before winds up presenting a defendant with a stream of 'witnesses' who just say 'guilty' and can't be cross-examined about it. By putting and end to that process, Crawford has done the administration of justice a real service.