Academic journal article Texas Journal on Civil Liberties & Civil Rights

Confrontation at the Supreme Court

Academic journal article Texas Journal on Civil Liberties & Civil Rights

Confrontation at the Supreme Court

Article excerpt

I. INTRODUCTION...........................................................................219

II. CRAWFORD: TOUCHSTONE OF THE MODERN CONFRONTATION CLAUSE (OR BACK WHEN WE ALL AGREED)....................................................................................221

A. Sir Walter Raleigh and the History of Confrontation.........221

B. The Rule.............................................................................224

C. The Two Inferences of the Crawford Court.......................224

III. POLICE INTERROGATIONS AND TESTIMONIAL STATEMENTS.....226

A. Significant Splintering-Off.................................................227

B. 2011, Take I: Justice Sotomayor Reconsiders Reliability?..........................................................................229

C. Comments on the Police Interrogation Cases.....................231

IV. CONFRONTING FORENSIC REPORTS...........................................233

A. Holding the Crawford Line, but the Dissenting Chorus Grows..................................................................................234

B. 2011, Take II: Justice Sotomayor Back in the Fold, but Pushing Bryant and Boundaries..........................................235

C. The Williams Muddle.........................................................237

D. Comments on the Forensic Reports Cases..........................240

V. CONCLUSION..............................................................................242

I. INTRODUCTION

Since 2004, the Supreme Court's docket has seen a great influx of cases relating to the Confrontation Clause, which provides: "[I]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him."1 Opening the door with the new test put forth in Crawford v. Washington,2 the Court began with great consensus, but has since fragmented to the point of creating a muddle that is anything but predictable and clear. As the members of the Court change over time, it is natural that some old arguments fall away and new courses are plotted. But while the Court should seek to get constitutional questions "right," it must also endeavor to provide stability to the legal system. The great upheaval in the area of Confrontation Clause jurisprudence is problematic for the criminal justice system because the rules are unclear. Time and money are spent trying and retrying cases when errors are made, and each time the Court shifts its view of what is required by the Sixth Amendment it gets harder to determine what might be reversible error.

The decision in Crawford was a great shift in Confrontation Clause jurisprudence. The Court interpreted the confrontation right more expansively and allowed less room for out of court statements to go unconfronted.3 Testimonial statements required an opportunity for crossexamination either at trial or before if the witness was unavailable at trial.4 But in Davis v. Washington,5 the attempt to create a test for police interrogations went awry. Allowing statements made primarily to address an "ongoing emergency"6 to go unconfronted presented an unnecessary means of evading the Confrontation Clause's requirements. In Michigan v. Bryant, that is precisely what happened.7 The primary purpose test was stretched by the Bryant Court.8 Suddenly, statements that would have been inadmissible under Crawford's straightforward test,in which statements made during police interrogations are testimonial, were not subject to the confrontation right and therefore admissible.

Even more concerning is the evolution of the Court's analysis in the area of forensic reports. While the Court started out viewing lab reports as a form of written testimony, by 2012 the Justices were split so dramatically that a majority opinion was impossible in Williams v. Illinois,9 Indeed, the Court is teetering on the edge of allowing lab reports, including sworn statements written with full awareness that they would be available for subsequent prosecutions, to be admitted without the defendant having an opportunity to cross-examine the analyst who produced the report. …

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