James Duane on the Puzzling Failure to Recognize the Death of Roberts

Crawford, in holding that testimonial statements lie at the core of concern of the Confrontation Clause and that satisfying the Roberts reliabiity standard does not suffice to render them admissible, left open the question of how, if at all, the Clause applies with respect to non-testimonial statements. Crawford suggested that Roberts may still apply to such statements, or that perhaps the Clause poses no obstacle at all to them. Now Davis has provided an answer, or at least Justice Scalia surely thought it has. James Duane of Regent Law School has written a short piece on the puzzling failure of some lower courts to recognize that Davis declared that the Confrontation Clause places no constraint at all on the admissibility of non-testimonial statements. The piece will be published in the Fall issue of Criminal Justice, but with permission it is available to read now, by clicking here.

In time, I assume it iwll be clear enough that Davis has left no room for the Roberts standard: Crawford held that an opportunity for confrontation, not reliability, is necessary with respect to testimonial statements, and Davis says that with respect to non-testimonial statements the Confrontation Clause simply does not apply. That, in my view, is the proper result as a matter of principle -- the Clause referes to witnesses, and witnesses are those who make testimonial statements -- and I think it will help lend a useful focus and clarity to the law of the Confrontation Clause. It may well be, however, that in occasional cases the failure of the prosecution to facilitate the production of the declarant of a non-testimonial statement will be held to be a violation of due process. If the prosecution is very sloppy with a small DNA sample, thus preventing the defense from examining it, I think that raises a possible constitutional issue; the same result could apply if the prosecution is very sloppy about allowing the defense to cross-examine the declarant of an important statement, even if the statement is non-testimonial and so the Confrontaiton Clause does not apply.

By the way, I suppose Roberts is still good (though somewhat dubious) law in one respect. The case itself involved the question of whether the witness should be deemed unavailable for Confrontation Clause purposes. That issue remains an important one under Crawford with respect to prior testimony, and although one may easily question the Roberts Court's conclusion that the prosecution made sufficient efforts to procure the witness's testimony for her to be be deemed unavailable, the Court has never indicated any doubt about that holding.