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Week of October 16, 2000

The Accused's Right of Confrontation Confronting Common Sense


Paul R. Rice1

In common parlance the right of confrontation, guaranteed in the Sixth Amendment of the U.S. Constitution, is something quite different from what the Supreme Court has interpreted. When asked what this right guarantees, ten out of ten laymen will respond that it guarantees that no individual can be convicted of a crime without the witness who implicates him testifying in his presence--"eyeball to eyeball," as Justice Scalia has characterized it.2

This right is fundamental to the fairness of our adversarial system of criminal justice. It is central to the accused being afforded a meaningful opportunity to challenge, in the presence of the finder of facts, the evidence being used to convict. Unfortunately, it is the constitutional right most diminished by recent Supreme Court decisions3. This is significant because it also is the right that is most frequently challenged through the government's regular use of hearsay evidence4 made admissible through hearsay exceptions.

Hearsay exceptions and the confrontation right

The common assumptions about the right of confrontation do not recognize that courts have historically allowed hearsay evidence to be introduced against criminal defendants. Currently, under Rules 8035 and 8046 of the Federal Rules of Evidence, 28 different hearsay exceptions are recognized, and this doesn't count the common law exceptions that have been defined out of the hearsay rule in Rule 801(d) (1) and (2).7

Hearsay, in its most common form, is an out-of-court statement that is being repeated in court by a witness to that statement, and the statement is being offered to prove the truth of what the out-of-court declarant said. While the hearsay rule generally excludes such statements be cause of problems of the declarant's untested perception, memory, sincerity and ambiguity, exceptions to the rule, more often than not, permit their introduction. These exceptions have been recognized over the centuries because statements made under particular circumstances and conditions, by individuals with particular states of mind, are believed to be reliable.

Under both the common law and the Federal Rules of Evidence, two broad types of exceptions are recognized. The first, codified under Rule 803, permits hearsay statements to be admitted without regard to the availability of the declarant. These include such statements as excited utterances, statements of present physical or mental conditions, business records and ancient documents. These statements can be used either with the testimony of the out-of-court declarant or by themselves (without regard to the declarant's availability). The second, codified under Rule 804, permits the admission of hearsay statements only when the declarant is shown to be unavailable. These include prior testimony, dying declarations and declarations against interest.

Under the common understanding of confrontation, an issue would arise whenever hear say is used against an accused. As explained below, however, the Supreme Court has never recognized an absolute right of confrontation. The right only imposes upon the government an obligation to use "good faith efforts" to produce the declarant and, if its efforts are unsuccessful, the confrontation guarantee is nonetheless satisfied.

Consequently, the hearsay/confrontation debate is centered on those exceptions in Rule 803 that disregard the availability of the declarant, and therefore, impose no obligation on the proponent to attempt to call the hearsay declarant. By definition, the exceptions in Rule 804 meet confrontation requirements because unavailability is a condition precedent to admissibility.

The evolving definition of the confrontation guarantee

For decades the Supreme Court avoided defining the parameters of the confrontation right. It also refused to explain why the use of hearsay did not violate that right. The Justices resolved confrontation issues on the basis of the particular facts of each case by employing factors relating to the need for confrontation. These included such elements as the gravity of the evidence in question; the possibility of the jury's misuse of the evidence; the statement's inherent reliability, as reflected in the circumstances under which it was made; whether the evidence involved perception and memory problems that could be exposed through cross-examination; and the availability of other evidence demonstrating the guilt of the accused and the reliability of the evidence in question. 8

In other words, it is hard to articulate a constitutional rule more general than that a criminal defendant has a right to confront witnesses who incriminate her unless the Court determines that she doesn't need it. Consequently, there has been no way to accurately anticipate whether the proposed use of any particular second-hand statements through a hearsay exception would violate the constitutional guarantee. The Court would not delineate the obligations that the constitutional right of confrontation imposes on the government. It simply insisted that it would not "constitutionalize the hearsay rule," whatever that meant.

It was not until Ohio v. Roberts9 that the Supreme Court appeared to define the confrontation right in a way that was consistent with the understanding of most people. In Roberts the government introduced a transcript of the preliminary hearing testimony of an incriminating witness whom the defendant, wrongly believing she would exonerate him, had previously called. When the defendant gave trial testimony in his own defense, the government, in its case-in- rebuttal, countered it with the absent witness's testimony.

Applying a two-part test, the Court concluded that prosecutor's use of this testimony did not violate the defendant's right of confrontation. First, the government successfully dem onstrated that it used "good-faith efforts" to locate and call the witness, but was unsuccessful. Second, it showed that the hearsay possessed some "indicia of reliability," which the Court was willing to presume since the statement fell within an established hearsay exception.

The clarity of the Roberts opinion, however, proved to be too radical for the majority of the Court, which immediately went into retreat. In United States v. Inadi10 the Court pretended to move forward with its interpretation and "clarification" of the confrontation right. In reality, however, the Court was backsliding around the confrontation right--doing a moon-walk that would rival Michael Jackson's.

Inadi abandoned the clarity and simplicity of Roberts, returning to the amorphous balancing standards of Dutton. The Inadi opinion demonstrated that the Court's retreat was without logic or direction.

In Inadi the Court concluded that the government could introduce co-conspirator admissions against a criminal defendant without demonstrating that it had made good faith efforts to bring the co-conspirator forward to testify at trial. Confronted with its first opportunity since Roberts to impose the "good faith efforts" requirement on a "hearsay like" statement that did not impose unavailability as a condition precedent to admissibility,11 the Court refused. It concluded that "Roberts...does not stand for such a wholesale revision of the law of evidence, nor does it support such a broad interpretation of the Confrontation Clause...Roberts cannot fairly be read to stand for the radical proposition that no out-of-court statement can be introduced by the government without a showing that the declarant is unavailable." The Court then proceeded to offer a laundry list of justifications for this conclusion that were neither logical, fair, true, nor consistent with fundamental principles of constitutional analysis.

Justice Powell's initial error was his interpretation of the confrontation debate as a zero- sum game. He disdained the suggestion that the co-conspirator admission should be excluded in favor of` the in-court testimony of the co-conspirator. "Co-conspirator statements derive much of their value from the fact that they are made in a context very different from trial and therefore are usually irreplaceable as substantive evidence. Under these circumstances, only clear folly would dictate an across the board policy of doing without such statements." While his point about the reliability of the statements is accurate, his premise is erroneous. No one had con tended that if the declarant were produced at trial the former statements would be rendered inadmissible.

If admitting the statement into evidence "actually furthers the ‘Confrontation Clause's very mission' which is to ‘advance' the accuracy of the truth determining process in criminal trials," producing the available declarant would further that process even more. Giving substan tive meaning to the right of confrontation does not, as Justice Powell suggested, create "a consti tutional ‘better evidence' rule." It simply acknowledges the historical reality that prosecuting authorities can be corrupt and that second-hand evidence can be misleading. Confrontation is not a right designed to duplicate what was done or said outside of court, but one to give the accused an opportunity to test the accuracy and relevance of the previous statement thought to be so reliable.

In this regard, I am reminded of an experience as a young adult when I was mistaken for another individual with the same name (including the same middle initial). I was dunned by his creditors and received numerous telephone calls from individuals who were unknown to me denouncing activities in which "I" had allegedly been engaged--some of which were illegal. If I had been mistakenly indicted for the criminal acts of the other individual, it would certainly have been essential to my defense to have had my alleged co-conspirators in court so that their unfamiliarity with me could have been demonstrated.

Powell's next point was, perhaps, his most outrageous. Justifying his conclusion that producing the declarant would be a futile act because the positions of the parties would have changed from partners in an illegal conspiracy to suspects or defendants in a criminal trial, Justice Powell noted: "The declarant himself may be facing indictment or trial, in which case he...will be...wary of coming to the aid of his former partners in crime." While this presumption of the defendant's guilt facilitates the resolution of constitutional issues, it is inconsistent with our accusatorial system with its presumption of innocence, and places the truly innocent defendants, who have relatively little discovery in the criminal process, at a distinct, and unfair, disadvantage.

Next, Justice Powell excused the government's failure to subpoena the co-conspirator by speculating about the unimportance of his testimony to the defense because the defendant had similarly failed to subpoena the witness. This conclusion is illogical and unfair for a number of reasons. Initially, it is inappropriate to play one constitutional right against another. More importantly, however, it assumes that because the defendant is guilty, he knows the identity of his co-conspirators. Third, it assumes that the defendant knows that the co-conspirator has made a statement. Fourth, it assumes that the defendant knows that the government possesses the statement and intends to use it. Finally, it assumes that he knows that the government is not going to subpoena that individual. While the first assumption was factually justified in the Inadi case, in many cases it will not be. The remaining assumptions are totally unjustified. There often is no way for a defendant, whether guilty or not, to know any of these facts.

Finally, rejection of the requirement of a good faith effort by the prosecution to call hear say declarants is justified on the ground that it would place "a significant practical burden on the prosecution." This burden was characterized as "significant" because, as Justice Powell explain ed, it would require the prosecution to (1) "identify each declarant," (2) "locate [them]" and (3) "ensure their continuing availability for trial." Why the first two burdens are significant is not explained. Every party who wishes to present testimonial evidence at trial faces the same bur den. Why it is particularly difficult for the prosecution is not apparent. The final burden is one of the Justice's invention.

No one argued in Inadi that the government had an obligation, once it learned the identity of a hearsay declarant, to follow his movements so as to ensure his "continuing availability for trial." If "good faith efforts" are determined from the time that other witnesses are being sub poenaed for trial, no additional burden is imposed by the requirement. Nothing in the nature of the confrontation right requires that it be a continuing obligation from any particular date. Justice Marshall eloquently noted in his dissenting opinion, "the cross-examination that has tra ditionally been the primary guarantee of reliability in trials [is not only being] subordinated to considerations of prosecutorial efficiency," but those needs for efficiency are being exaggerated to justify a preordained conclusion.

Despite repeated opportunities to do so, the Court has never required the government to produce a hearsay declarant or show the declarant's unavailability before introducing any hearsay made admissible under Rule 803 (which considers the declarant's unavailability immaterial).12 Only when hearsay has been offered under an exception delineated in Rule 804, where unavail ability has been made material, has the Court found a constitutional right to the demonstration. By so restricting the government's obligation, the Court is permitting the substance of the con frontation right to be defined by Congress's classification of exceptions under Rule 803 or Rule 804. The consequence is that rather than "constitutionalizing" the hearsay rule, which the Court has always insisted that it would not do, it has, instead, "evidentialized" the right of confronta tion--giving it substance only through the Federal Rules of Evidence. The absurdity of this meta morphosis becomes clear when the criteria for classifying exceptions under Rules 803 or 804 are understood.

There are no criteria for codifying hearsay exception under Rule 803 or 804?

The following are just a few of the 28 recognized exceptions: excited utterances, dying declarations, declarations against interest, statements of present physical and mental condition, business records, public records, and learned treatises. What is significant about them is that there are no common characteristics that justify placing some in Rule 804, where unavailability of the declarant is a requirement, and others in Rule 803 where availability is ignored.

One might logically assume that the exceptions in Rule 804 apply to statements and con ditions that are less reliable and that, therefore, are admissible when a necessity has been demon strated. Conversely, it might be assumed that the types of statements listed under Rule 803 are the most trustworthy and therefore admissible even if the declarant's testimony is also available. Neither of these assumptions, however, is valid.

Perhaps the most reliable category of hearsay statements is catalogued under Rule 804-- prior testimony. Such statements were given under oath, subject to the penalty of perjury, and tested by cross-examination. In addition, in many instances videotape has even recorded the demeanor of the witness. Nevertheless, this information is not admissible unless the declarant is shown to be unavailable.

Conversely, some of the least reliable hearsay is admissible under Rule 803. Ancient documents are admitted because of a presumption that live witnesses will either not be available or, if available, will not remember the facts after such a lengthy period of time as 20 years. Yet age does not convert an otherwise unreliable statement into a reliable one. Similarly, excited utterances are admitted because the declarant's reflective thought processes are overwhelmed, thereby giving some assurance that the statement is sincere, but the very conditions that make the statement sincere also diminish its reliability.

The reality is that under both the common law and the Federal Rules of Evidence the classification of these hearsay exceptions has been the product of historical accident. Each exception appears to have been defined by the details of the context in which it was originally recognized, regardless of whether particular details (like the availability or the unavailability of the declarant) were important to the court's recognition.

In a word, the classification of hearsay exceptions is arbitrary. Therefore, defining an accused's right of confrontation by these classifications is nothing less than absurd.

The common perception of the confrontation guarantee is the most reasonable

The Court has refused to create a general obligation on the part of the government to locate and call all hearsay declarants whose statements they intend to use at trial. In so holding, the Justices apparently believe the declarant's testimony at trial would require the exclusion of his previous statements--like the requirement of unavailability in Rule 804. This is wrong. Un like Rule 804, the right of confrontation imposes no requirement of unavailability. It merely recognizes that demonstrated unavailability, after good faith efforts have been made to bring the witness forward, is an acceptable excuse for using the untested hearsay in Rule 803.

Under the right of confrontation, unlike Rule 804, the availability of the declarant is not a basis for exclusion. It is a basis for inclusion. While the declarant's availability excludes hear say under Rule 804, the confrontation right is premised on the belief that the declarant's avail ability enhances the reliability of the hearsay admitted under Rule 803.

The right of confrontation should impose a duty on the government to make a good faith effort to call all identifiable hearsay declarants because their presence at the trial makes all con victions premised on their hearsay more reliable, and therefore more acceptable, than they would have been without the opportunity to see and examine the source of the government's case.

While it may be true, as Justice Powell claimed in Inadi, that hearsay declarants' avail ability may not reproduce "a significant portion of the evidentiary value" of their previous state ments, his opinion ignores the possibility that the examination of them in the presence of the jury may clarify, and thereby increase the reliability of, their previous statements. More importantly, the right of confrontation is not about "reproducing" other evidence, it is about testing the evi dence that is available. Surely such testing would add to the accuracy or fairness of the trial. Indeed, the availability of the declarant will mean that jurors will have had an opportunity to examine his demeanor; if nothing else, it will prove that the declarant existed, and was not the product of a corrupt prosecution's imagination, as in the Star Chamber proceeding of the 16thcentury, that gave rise to the Framers' determination of the necessity of the confrontation right.

Simply because we no longer fear a corrupt state as much our forefathers did, does not mean that we should discard the constitutional safeguards they put in place. Safeguards such as the right to confront one's accusers were created so that we wouldn't have to fear such corruption, and the persecution it spawns.

Public confidence in prosecuting authorities does not justify eviscerating the right of confrontation for the sake of prosecutorial convenience. As Justice Marshall reminded us in his dissenting opinion in Inadi, "the values embodied in the Sixth Amendment [should not] be so cavalierly subordinated to prosecutorial efficiency."

History repeats itself--the only thing new is the history we have forgotten. The Bill of Rights guarantees were adopted in an attempt to remember and to forestall this inevitability. The Supreme Court defeats that purpose with its distorted interpretations and intemperate justifica tions, when it places exaggerated concerns for prosecutorial convenience over our need to protect the innocent defendant.

  1. I would like to express by appreciation to my colleagues Walter Effross and Jamin Raskin for their editorial assistance.

  2. The Sixth Amendment to the U.S. Constitution provides, in part, "In all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him."

  3. See United States v. Bourjaily, 483 U.S. 171 (1987) (co-conspirator admission) and United Sates v. Inadi, 475 U.S. 387 (1986) (co-conspirator admission). See also Maryland v. Craig, 497 U.S. 836 (1990) (recogniz ing an exception to the "eyeball to eyeball" confrontation right when the declarant is called as a witness).

  4. Rule 801(c) provides: "Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."

  5. Rule 803 delineates 23 exceptions to the exclusion directed by the hearsay rule "even though the declarant is available as a witness."

  6. Rule 804 delineates 5 exceptions to the exclusion directed by the hearsay rule "if the declarant is unavailable as a witness."

  7. Rule 801(d) (1) excludes 3 types of statements from the definition of hearsay-- prior consistent statements of a witness, prior inconsistent statements or a witness, and prior identifications of a witness. Rule 801(d)(2) excluded 5 forms of personal and vicarious admissions from the definition of hearsay.

  8. See Dutton v. Evans, 400 U.S. 74, 87-89 (1970).

  9. 448 U.S. 56 (1980).

  10. 475 U.S. 387 (1986).

  11. Admissions were recognized as an exception to the hearsay rule under the common law. However, as noted in footnote 7, supra, when the Federal Rules of Evidence were codified, admissions were defined out of the hearsay definition in Rule 801(d)(2). Therefore, admissions are now admissible non-hearsay, rather than admissible hearsay.

  12. See, e.g., Idaho v. Wright, 497 U.S. 805 (1990) (residual exception);White v. Illinois, 502 U.S. 346 (1992) (excited utterance exception).

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