Academic journal article American Journal of Criminal Law

Witnesses in the Confrontation and Self-Incrimination Clauses: The Constitution's Fraternal Twins §

Academic journal article American Journal of Criminal Law

Witnesses in the Confrontation and Self-Incrimination Clauses: The Constitution's Fraternal Twins §

Article excerpt

Introduction....................159

I. The Doctrinal History Behind the Meaning of "Witness"....................160

A. Confrontation and the Rapid Rise of the Testimonial Paradigm.. 160

1. The Crawford Revolution....................160

2. The "Primary Purpose" Inquiry....................162

3. Statements to Non-Law Enforcement Actors....................164

4. Confronting Forensic Analysts....................165

B. Self-Incrimination and the Act of Production....................168

1. The Fifth Amendment's "Testimonial" Predicate....................168

2. Testimony in the Act of Production....................169

3. Compelled Expression of the Contents of an Individual's Mind....................170

4. Fishing Expeditions and Foregone Conclusions....................172

II. The Shared Flaws in the Court's Testimonial Design....................173

A. Problems in Practice: Ad Hoc Judicial Determinations Redux.... 173

B. Problems in Theory: Both Doctrinal Formulations Promote Easy Circumvention of the Constitutional Protection....................175

1. The Court's Interpretation of "Witness" in Both Clauses is Not Inevitable....................175

a. Linguistic and Historical Support Reveal a Broader Definition Than That Which Crawford Identifies....................175

b. Linguistic and Historical Support Reveal a Broader Definition Than That Which Fisher Ordains....................176

c. Active vs. Passive Witness Interactions....................178

2. The Court's Theory of "Witness" Undermines the Constitutional Values Inherent in Each Clause....................178

a. Compromising the Right to be Confronted....................179

b. Confusing the Privilege Against Self-Incrimination....................183

III. Bridging the Divide....................186

A. Drawing Meaning from the Fifth Amendment to Define "Witnesses" Against the Accused Will Sharpen Confrontation's "Primary Purpose" Inquiry....................187

B. Integrating Confrontation's Testimonial Framework into the Meaning of "Witness" Against Oneself Would Simplify the Fifth Amendment's Act-of-Production Doctrine....................189

Conclusion....................190

INTRODUCTION

The word "witness" appears four times in the Constitution: in the Fifth Amendment's Self-Incrimination Clause, 1 in the Sixth Amendment's Confrontation2 and Compulsory Process3 Clauses, and in the Treason Clause4 of Article III. The Supreme Court has never defined the term outside of the Bill of Rights,5 and in the realm of compulsory process, the Court has long embraced the idea that "witnesses" include not only persons who take the stand at trial, but also all admissible evidence that an accused might summon in his favor.6 However, the Court has rejected similarly broad constructions in the context of self-incrimination and confrontation that would equate "witness" with one who furnishes evidence,7 instead constraining the scope of each Clause to one who offers "testimonial" communications.8 The Court has further dictated a wholly different inquiry as to what constitutes a "testimonial" communication depending upon which constitutional provision is at stake. Delineating the boundaries of each constitutional protection around the concept of "testimony" has engendered volumes of litigation, culminating most recently in what can only be described as significant doctrinal breakdowns in both areas.

The Supreme Court's failure to arrive at a parallel definition of the term is not itself the source of its thorny jurisprudence. A single word may be imbued with multiple context-dependent meanings and in common parlance, "witness" evokes a range of identities and occupations. In the constitutional setting, the posture of the word in each operative Clause suggests a unique relationship to the particular right at stake. The Supreme Court is not wrong to discern variations in the term's form and function in the development of its constitutional criminal procedure. …

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