Tuesday, July 05, 2005

Crawford Beyond the Criminal Trial?

My last post before I went on hiatus from the blog concerned the applicability of Crawford at sentencing proceedings. More broadly, I have been asked about the applicability at other proceedings -- probation revocation hearings, deportation hearings, and so forth. My thoughts are in line with the comments I offered at the end of the prior posting.

The confrontation right as such applies only to criminal prosecutions: A testimonial statement may not be offered at trial against an accused if he is not afforded an opportunity to cross-examnie the maker of the statement. But even though the confrontation right as such does not apply beyond the criminal trial, there is a broader principle in our jurisprudence that when a person testifies an adverse party may cross-examine. Suppose that during a deportation hearing the government presented a witness who testified in favor of deportation, and after that witness concluded the ALJ said, "Thank you very much. Excellent testimony, so clearly reliable we don't have to hear from the respondent." The respondent would of course be very upset, and with reason. The Confrontation Clause is not applicable, but denial of the right to cross-examine in these circumstances seems to be a blatant violation of general due process. Now, the big change effected by Crawford is to recognize that some statements not actually made before the tribunal are really testimonial in nature. So the due process argument might make the same move -- saying that some statements not made in front of the tribunal are really testimonial in nature and that allowing them to play a role in the decision would allow a witness to testify without going under oath and being subjected to cross-examination. Even if the particular type of proceeeding does not follow ordinary evidentiary rules, this impairment may be of constitutional concern.

But then what are the limits? Certainly it is a fundamental part of our civil adjudicative system, as well as of the criminal system, that parties have a right to cross-examine witneesses. Does this mean that Crawford should effectively be transplanted in the civil system as a matter of due process? That doesn't seem particularly plausible to me. And yet there may be situations in which we would say that failure to allow cross amounts to a constitutional violation. I have long had a good title for an article waiting to be written: Civil Confrontation. The reason why the article remains to be written, apart from press of time, is that I am not sure just what the contents would be. Any takers?


Anonymous said...

Does Crawford apply to VOP'S?

Waring Fincke said...

Has the Crawford analysis model been applied to other constitutional law issues.

There is a circuit split on how the Second Amendment should be interpreted. The 5th has adopted the solitary view that the Amendment protects an individual's right to bear arms using an historical/text based analysis similar to the one used in Crawford. Have any Courts used the Crawford analyitical method to interpret other parts of the Bill of Rights differently from past cases?

Waring Fincke