Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law--as does [Ohio v.] Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether.I believe the law of the Confrontation Clause would be improved if the Court were to make clear that the Clause has no application to non-testimonial statements.
As a matter of principle, this is the right outcome. If a person is not acting as a witness within the meaning of the Clause -- and I take the definition of witness as being one who makes a testimonial statement -- then she simply is not covered by the Clause. Perhaps her statement ought to be excluded, and perhaps even (occasionally) it should be excluded as a constitutional matter, but not on the ground that to admit it would be to violate the accused's right "to be confronted with the witnesses against him."
Furthermore, I believe that the confrontation right, where it does and should exist -- that is, with respect to testimonial statements -- is more likely to be robustly protected if the right is not stretched beyond its proper domain. A large part of the problem before Crawford was that the confrontation right depended on hearsay law, and hearsay covers such a vast body of statements that a categorical rule of exclusion was not feasible. This made for a very complicated body of law, and obscured the nature of the confrontation right and its value. The basic rule of Crawford -- if the statement is testimonial, the accused has a categorical right to confront the maker -- is simple and relatively easy to articulate and understand, expressing a principle that has great intuitive appeal. If the rule is complicated by adding in a lesser adjunct -- that if the statement is not testimonial, the confrontation right may still require exclusion if the statement fails a multi-step test of reliability -- it will inevitably lose some clarity. And eventually, I believe, this would weaken the rule at its core.
Finally, I don't believe the Roberts test provides any substantial protection to defendants with respect to non-testimonial statements. Even before Crawford, the Roberts standard did not keep out many statements that were not testimonial. And since Crawford I don't know of a single case where the application of Roberts to non-testimonial statements has made a difference. (If there are any such cases, I would love to know; please post a comment!) This is not particularly surprising. It is highly unlikely that a court would hold that (1) a given statement is non-testimonial for Crawford purposes, (2) it satisfies the rule against hearsay, either because it (a) fits within an exception or (b) is supported by sufficient guarantees of trustworthiness to warrant admissibility, and yet (3) it is barred by the Roberts test because it is unreliable, neither (a) fitting within a "firmly rooted" hearsay exception nor (b) supported by sufficient guarantees of trustworthiness that are of a form satisfactory for constitutional purposes (i.e., circumstances surrounding the making of the statement, as opposed to corroboration). I am not saying that this is conceptually impossible, just that it hardly ever happens. I suppose it could more often happen that a state court would reach conclusion (2) and that a federal habeas court, without a basis for looking behind that decision, would yet reach conclusions (1) and (3). But I don't know of any cases fitting this mold, either, and I do not believe they are plentiful.
What does tend to happen, over and over again, is that courts determine that a given statement is not testimonial and then go through the whole Roberts analysis only to conclude -- surprise, surprise -- that the statement is sufficiently reliable to warrant admissibility. It is at least prudent for lower courts to go through this exercise. Arguably, it is required. The Supreme Court has said:
If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the [lower courts] should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989); accord, Agostini v. Felton, 521 U.S. 203, 237 (1997). But I believe that the Court's treatment of Roberts in Crawford creates a situation different from those present in Rodriguez deQuijas or Agostini. (In Rodriguez deQuijas, it was a shifting attitude towards arbitration that signaled the probable overruling of a prior case; in Agostini, five members of the Court had, in separate opinions, indicated that the prior decision should be overruled.) Crawford explicitly overruled Roberts so far as it applied to testimonial statements. With respect to non-testimonial statements, the Court recognized that its holding "casts doubt" on Roberts, and, while recognizing that it "need not definitively resolve whether [that part of Roberts survives" the Crawsford decision, it explicitly said, as noted above, that exempting such statements from the Confrontation Clause altogether would be "wholly consistent with the Framers' design," as would this aspect of Roberts. A majority opinion of the Court has therefore explicitly given Roberts , so far as it applies to non-testimonial statements, no greater standing than a rule rendering the Confrontaiton Clause inapplicable altogether to such statements. At this point, it seems to me it could be appropriate for a lower court to choose the latter rule, which is certainly more in accordance with the logic of the Crawford opinion than continued application of Roberts.
But assuming the lower courts do not wish to be so adventurous, they will continue to go through the charade of analyzing non-testmionial evidence under Roberts and then deciding it is admissible. I suppose this is a harmless exercise, apart from the waste of time and energy it entails. It may go on indefinitely unless a prosecutor declines to argue that a given non-testimonial statement should be deemed reliable under Roberts and instead contends simply that Roberts should not apply to non-testimonial statements.
Assuming that the Confrontaiton Clause does not apply to non-testimonial statements, they are , of course, still subject to the rule against hearsay, and occasionally admission may even violate the accused's general right to due process. I will not attempt here to articulate a general theory of when the due process right might require exclusion of a non-testimonial statement, but here are some considerations: How important is the evidence to the prosecution? How likely is it that cross-examination of the declarant would be significantly informative? How pejudicial is the evidcne likley to be absent cross-examination? Did the accused have an opportunity to cross-examine the declarant? Is, or was, the prosecution better able than the defense to produce the declarant as a witness, either at trial or at a deposition? If the declarant is unavailable, did the conduct of either party contribute to that unavailability?