Summary Exhibits and the Confrontation Clause: Looking beyond the Hearsay Rule for Evidentiary Implications of Crawford's Progeny
Basaria, Karim, Journal of Criminal Law and Criminology
The Confrontation Clause provides, "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." (1) This right is afforded to defendants in criminal cases by giving them the opportunity to cross-examine the witnesses who testify against them. According to the U.S. Supreme Court, the purpose of the Confrontation Clause is to "ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact." (2) However, before the Court's 2004 decision in Crawford v. Washington, criminal defendants were not guaranteed an opportunity to cross-examine a witness's out-of-court statement against them if the statement fell within a "firmly rooted hearsay exception" or was otherwise considered reliable. (3) Crawford effectively severed the relationship between the Sixth Amendment's Confrontation Clause and the hearsay rule, holding that a defendant's right to confrontation can only be satisfied when the defendant has the opportunity to cross-examine the witnesses against him. (4)
After Crawford, the Court has made numerous attempts to categorically distinguish statements that trigger the confrontation right from statements that do not. Most of Crawford's progeny have attempted to distinguish "testimonial" statements, which trigger Confrontation Clause protections under the new standard, from "non-testimonial" statements, which do not receive constitutional scrutiny. (5) More recently, the Court has begun to address how and whether Crawford's progeny dictate which witnesses the government must call when confronting criminal defendants with their accusers. (6) The Supreme Court has yet to address whether charts, summaries, and calculations of voluminous data are testimonial. Such evidence is admissible under Federal Rule of Evidence (FRE) 1006. However, if this evidence is testimonial, the fact that it is admissible under FRE 1006 should not protect it from Sixth Amendment scrutiny. Under Crawford, the Confrontation Clause should prohibit the admission of a testimonial summary exhibit unless the defendant is given the opportunity to cross-examine the individuals whose assertions are contained in the summary evidence. To hold otherwise would be inconsistent with the Court's decision in Crawford, which effectively segregated the determination of evidentiary admissibility from the determination of constitutional admissibility.
As courts continue to define the contours of the Sixth Amendment, the same concerns that led the Court to sever the hearsay rule from the Confrontation Clause will eventually require it to address whether the admission of testimonial summary exhibits raises Confrontation Clause concerns when the defendant is not afforded the opportunity to confront the individuals who made the assertions contained in the summaries.
Part II of this Comment contains a brief history of our Confrontation Clause jurisprudence. Part II also provides a general overview of FRE 1006, which allows for the admissibility of summary exhibits. The right to confrontation can be traced back to long before the founding of this country. However, recent developments in Sixth Amendment jurisprudence have significantly expanded the scope of the right. Part III of this Comment explores the relationship between FRE 1006, the hearsay regime, and the Confrontation Clause. A summary exhibit can be testimonial in the same way certain hearsay statements are testimonial. This section of the Comment discusses why courts should subject testimonial summary exhibits to the same degree of constitutional scrutiny as testimonial hearsay evidence. In Part IV, this Comment explores how the Supreme Court's fractured decision in Williams v. Illinois (7) has confounded the Court's otherwise steady Confrontation Clause jurisprudence, and how that decision could impact whether summary exhibits receive constitutional scrutiny. …