"Confronting" Foreign Intelligence: Crawford Roadblocks to Domestic Terrorism Trials
Scott, John, Journal of Criminal Law and Criminology
In the first decade of this century, a central preoccupation of American foreign policy has been the rise of international terrorism. (1) This phenomenon provokes questions about the interrelation of international and domestic criminal law, constitutional interpretation, intelligence gathering, and military strategy. Now, after the challenges of the last eight years, the rhetoric (if not yet the reality) of American policy on terrorism seems to be changing. (2) The attempt to transfer prosecution from military tribunals to Article III courts is exemplary of this overall shift. But there are deeper legal issues at play beyond the political repercussions of this shift. (3) A recent line of cases from the Supreme Court has the potential to make the process of trying suspected terrorists more complicated than it need be. (4) Crawford v. Washington and its progeny have articulated a new standard for Confrontation Clause analysis and in so doing have raised significant questions about the future admissibility of certain evidence in criminal trials. (5)
The goal of this Comment (6) is to analyze the new confrontation rule from Crawford to determine what types of challenges its more rigorous testimonial evidence standard poses for prosecutors in future terrorism cases. Subpart II.A will provide background on the relevant cases, discussing the Court's holding in Crawford as well as its subsequent clarification in Davis v. Washington. Subpart II.B will describe the two primary federal regulations governing specific rules applicable to the use of foreign intelligence at trial. Part III will argue that the new Confrontation Clause standard potentially conflicts with these federal regulations and analyze the costs this conflict could impose on the government. Lastly, Part IV will attempt to weigh the merits of potential solutions and assess the likelihood of their adoption.
A. CRAWFORD: CHANGING THE RULES
The Confrontation Clause of the Sixth Amendment states "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him...." (7) The common law developed a general antipathy towards the introduction of hearsay evidence and it is thought the Confrontation Clause embodies the same general principle. (8) The common law also disfavors reliance upon ex parte testimony presented through affidavits. (9) Defendants have the right to compel witnesses against them to appear and then to cross-examine those witnesses to test for weaknesses in their testimony. (10)
On its face, the Confrontation Clause seems to require a blanket prohibition of any statement made by a declarant not testifying at trial. (11) Such a shallow reading, however, would abrogate centuries of common law precedent recognizing a variety of valid hearsay exceptions. (12) Treating the words in the Confrontation Clause as a literal command would be far too extreme and out of line with the intentions of the Framers. (13) Therefore, the challenge for the courts is to balance the constitutionally enshrined preference for face-to-face testimony in criminal trials and the right to cross-examine hostile witnesses with the workaday realities of a functioning criminal justice system. (14)
In 1980, the Supreme Court set out a test for evidence challenged under the Confrontation Clause that attempted to strike just such a balance. (15) The Court determined in Ohio v. Roberts that the Sixth Amendment guaranteed a substantive right to challenge the reliability of evidence at trial. (16) The defendant in this case was charged with forgery. (17) At a preliminary hearing, the defense attorney called the daughter of the victim and attempted in vain to get her to admit to authorizing the defendant's use of the checks and credit cards in question. (18) At trial, the defendant took the stand and testified that the daughter had in fact authorized him to use those checks and cards. …