Taking Confrontation Seriously: Does Crawford Mean That Confessions Must Be Cross-Examined?

Article excerpt

ABSTRACT

This article focuses on the applicability of the Supreme Court's decision in Crawford v. Washington to one subcategory of party admissions--defendants' confessions "taken by police officers in the course of interrogations." Such statements fall within Crawford's core class of testimonial statements, which must be subjected to cross-examination either at the time they are made or at trial in order to satisfy the Confrontation Clause. In some post-Crawford cases, defendants have argued that the failure to comply with Crawford should bar the prosecution from using their confessions. The lower courts have uniformly held that Crawford does not apply to a defendant's own confession because such statements are defined by the Federal Rules of Evidence as "not hearsay," and Crawford applies only to "testimonial hearsay." In this article, I argue that, as a definitional matter, Crawford does apply to confessions, but that they should be exempted from Crawford's cross-examination requirement on "historical grounds."

I. INTRODUCTION

The "Crawford" (1) revolution of 2004 radically changed how courts were to determine whether admitting hearsay violated a criminal defendant's Sixth Amendment confrontation rights by switching the focus from the reliability of the statement itself to the cross-examination of the person who made the statement. (2) As a result, the focus of the Confrontation Clause (3) became whether or not hearsay statements that the Craw ford Court called "testimonial" had been subjected to cross-examination. (4) Since 2004, a new "Crawford" case has reached the Supreme Court almost every term, (5) some of them grappling with the question Crawford intentionally left unanswered: (6) what does "testimonial" mean? (7)

One potential "Crawford" issue has yet to make it to the High Court: Crawford's effect on the hearsay "exemptions" found in Federal Rule of Evidence 801(d)(2), collectively labeled as "An Opposing Party's Statement." (8) At first blush, this makes sense because party statements are deemed "not hearsay" by the Federal Rules of Evidence (9) and according to the Crawford Court, the "primary object" of the Sixth Amendment's Confrontation Clause is "testimonial hearsay." (10) Nonetheless, there is an argument that party statements should not be exempted from Craw ford on those grounds because prior to the Federal Rules, party statements were treated as hearsay admitted subject to an exception. (11) Thus, their current non-hearsay status is largely a matter of labeling (12) and should not affect how they are treated for Crawford purposes.

Moreover, unlike non-hearsay statements exempted from Crawford scrutiny because they are not admitted for their truth, (13) party statements are both admitted for truth and often provide powerful evidence of a defendant's guilt. (14) And statements that are not hearsay because they are not offered for their truth presumably need not be subjected to cross-examination because their reliability is not an issue--that is, it does not matter whether they are true. (15)

This article will focus primarily on the applicability of Crawford to one subcategory of party statements: a defendant's confession "taken by police officers in the course of interrogations," which fall within Craw ford's "core class of 'testimonial' statements." (16) Confessions also satisfy the definition of hearsay, since they are out-of-court statements admitted for their truth. (17) And, finally, they appear to satisfy Crawford's other requirements: the person who made the statement is unavailable as a witness at trial and was not cross-examined at the time the statement was made. (18) Nevertheless, no post-Crawford court has seriously considered whether confessions admitted without cross-examination violate the Confrontation Clause and many have admitted them into evidence simply because they are deemed not hearsay by the Federal Rules of Evidence. (19)

In spite of this simplistic approach, it may be that these courts have reached the correct result. …