Academic journal article Albany Law Review

Confronting the Twenty-First-Century Marian Examination

Academic journal article Albany Law Review

Confronting the Twenty-First-Century Marian Examination

Article excerpt

"To be sure, the Clause's ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination." --Justice Scalia, Crawford v. Washington (1) 


Today, in criminal courtrooms across our nation, the accused, at trial, are routinely denied what was long ago purposefully implemented by our Founders, the Framers of our Constitution and its Sixth Amendment Confrontation Clause: "[i]n all criminal prosecutions, the accused shall enjoy the be confronted with the witnesses against him." (2) Our Framers meant to create a clause that would forever test the reliability of evidence introduced against the criminally accused. Certainly, not many at that time claimed to know what the Twenty-First century would bring, much less the kinds of evidence that would be introduced at a criminal trial. Nevertheless, the clause's purpose has withstood the test of time and remains the same, though now it is tasked with not only traditional witness statements, but also DNA, toxicology, alcohol breath test results (i.e., often multi-analyst forensic disciplines where several or more analysts are involved in the testing process) and other similar types of forensic evidence. (3)

Haunted by the execution of Sir Walter Raleigh and the misuse of the Marian examination, the Framers set out to eliminate arbitrary and untested out-of-court processes meant to substitute for in-court justice and truth seeking. (4) The Marian examination, derived from the Marian Committal Statute of 1555, "arrang[ed] for the examining [justices of the peace] to gather evidence for trial and to bind witnesses to appear [at trial] to testify." (5) Although it was not intended to serve as an out-of-court replacement for live testimony, in practice (at times) the Marian examination allowed for the introduction of this evidence at trial without confrontation. (6) The oftcited 1603 trial of Sir Walter Raleigh, who was convicted of treason and sentenced to death, is the prime example. (7) Raleigh begged the court to bring his accuser, Lord Cobham, before him so that the reliability of Cobham's out-of-court statements could be tested. (8) Raleigh was denied this opportunity; instead, apparently satisfied with the inherent reliability (i.e., presumed reliability) of the Marian examination process--where accusers and witnesses were examined by justices of the peace prior to the trial and such examinations were recorded and then used at trial in lieu of in-court testimony--the judicial officials in Raleigh's trial thought his request preposterous. (9) It was this practice, this acceptance of untested (and presumed reliable) evidence that the Framers sought to forbid. (10)

Our Supreme Court continued in the footsteps of our Framers in its modern-day jurisprudence for some time with Justice Scalia at the helm in Crawford v. Washington. (11) In Crawford, the Court looked to the Framers for guidance and decisively rejected out-of-court evidence that was presumed already tested, eliminating "amorphous notions of 'reliability'" (12) that had been the law of the land since Ohio v. Roberts (13) in 1980. Specifically, the Crawford court created a new approach to confrontation--what it termed a "core class of 'testimonial' statements" that must be met with confrontation--in the place of the Roberts rule where reliability of out-of-court evidence that met a "firmly rooted" hearsay exception was inherent. (14)

Since its 2004 decision in Crawford, the Court, especially within the forensic evidence context, has struggled to pinpoint what out-of-court evidence it must reject to stay true to the Framers' course and purpose in adopting the Confrontation Clause. (15) While this quest continues in cases involving "conventional witness" statements, i. …

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