The Nostalgia for Reliability Testing

Professor Ben Trachtenberg of the University of Missouri Law School and I recently had an exchange on Confrontation Clause matters published in the University of Florida Law Review.  Here are links to his original article, to my responsive essay, and to his reply.  I’m not going to ask the Law Review for the opportunity to do a surreply.  But I’ll offer a few comments here.

Prof. Trachtenberg’s pieces reflect nostalgia for the “good-old days” of the pre-Crawford era, when reliability testing under Ohio v. Roberts prevailed.  He certainly is right that some of the members of the Supreme Court have indicated that they would like to return to this era.  I think it’s clear – and the majority opinion in Crawford itself makes it clear – that reliability testing did a pretty rotten job of protecting the confrontation right.  Indeed, the fact that the Washington courts came out the other way in Crawford, in what should have been an absurdly easy case, indicates how weak the right was.

One reason, perhaps the principal one, why reliability testing was so limp is that it is indeterminate to the point of incoherence.  What does reliability mean?  It is notable that, for all the extolling of reliability testing by Prof. Trachtenberg and others, they rarely if ever define reliability; I haven’t found any attempt to define the term by Prof. Trachtenberg in this exchange.  I pointed this out in my essay, but his reply did not take me up on the invitation.  I do think a coherent definition of reliability can be framed – but it demonstrates the impossibility of making reliability a useful test.

In my essay, I wrote: “Evidence is reliable proof of a given proposition if and only if, given the evidence, it is highly improbable that the proposition is false.”  The trouble is that virtually no evidence is reliable under this standard.  The live testimony of a live witness with personal knowledge of the subject of the testimony is the epitome of acceptable testimony that, under any theory of the Confrontation Clause of which I am aware, does not pose any problem under the Clause – and yet eyewitness testimony is notoriously unreliable. It seems to me that candor requires us to recognize that trials are full of items of evidence that, taken individually, may not be reliable indicators of the proposition for which they are offered.  Cumulatively, though, they may create compelling proof.

Prof. Trachtenberg and I appear to agree (and with many others) that conspirator statements are unreliable.   So far as Crawford doctrine and I are concerned, that is irrelevant to any Confrontation Clause decision.  But where does this leave Prof. Trachtenberg?  He contends that necessity is the real justification for admitting such statements.  In my essay, I expressed the belief that this contention exposes a weakness of his approach; it is a remarkably weak right that is overcome by the government's need to gain convictions of a crime that is difficult to prove.  In his reply, Prof. Trachtenberg says that in discussing necessity he is only "describing reality, not announcing . . . approval."  But I don't believe that solves his problem.  Does he believe conspirator statements should be barred by the Confrontation Clause or not?  If he believes they should be, then he is adopting a view of the Clause that would not only cause a radical change to traditional law but that has no historical bearings and that, I believe, would not gain the adherence of a single Supreme Court Justice.  And if he believes these statements should not be barred by the Clause, given how unreliable they are, on what plausible basis?  I am still left wondering.

So I think that when judges and commentators speak of reliable evidence, what they may really have in mind is evidence that probably (let's put aside the question of just how probably) will lead to accurate fact-finding.  After all, accuracy is good, and if we put aside systemic and procedural concerns anything that leads to accurate fact-finding is good and anything that leads away from it is bad.

But a big problem, of course, is that it is pretty much impossible to pick out the evidence that will hurt fact-finding.  This is especially true given that there is no real basis for confidence that jurors are unable to discount for the weaknesses of hearsay; empirical evidence suggests that they're pretty good at it, and may even over-discount.  Hearsay, after all, has real probative value, and excluding it denies the jurors potentially useful evidence.

The bigger problem is the qualification I just stated – that we put aside systemic and procedural concerns.  But those are really what the Confrontation Clause is all about.  That's certainly what the language of the Clause suggests – it gives the accused the right "to be confronted with the witnesses against him," which sure sounds like a procedural right with respect to witnesses and not a right to exclude evidence that lacks certain substantive qualities. 

And this procedural concern is clearly what the confrontation right has been about historically.  Prof.  Trachtenberg vigorously assails the merits of taking an originalist view of the Clause.  But the value of history in this area is not limited to determining what the meaning of the Framers would have been understood to be in 1791, and it's not limited to persuading those who put preeminence on that meaning.  (Note that while Crawford itself is quite an originalist opinion, as one would expect given that it was written by Justice Scalia, the majority that joined it included some Justices of very non-originalist orientation, and that has been true as well of Davis v. Washington, Melendez-Diaz v. Massachusetts, and Bullcoming .v New Mexico.)  What the history shows is that for hundreds of years protecting the conditions of testimony under which witnesses against an accused testify – ensuring thath tey do so face to face with the accused, and subject to cross-examination – has been a central aspect of the common-law system of criminal adjudication.

I have found that this is still a principle that resonates with people.  Does anybody doubt that prosecution witnesses should be required (absent forfeiture of the right) to testify face-to-face with the accused?  Or, looking at the matter from the other direction, does anybody think that a prosecution witness should be able to testify by talking to police officers in a closed room in the station-house, or in the witness's living room?  And isn't it clear that if Crawford and Hammon v. Indiana had come out the other way, then we would have a system in which witnesses would be able to testify in precisely those ways?  It was, after all, entirely clear to all participants in those conversations that the witnesses were creating evidence for possible use in prosecution.

In arguing Hammon, I proposed a per se test that would have yielded a different result in its companion case, Davis v. Washington – that a statement made to a known police officer accusing another person of a crime be deemed testimonial.  That was not meant to be a comprehensive definition of  the term "testimonial," as one might think from reading Prof. Trachtenberg's reply, but rather the delineation of a particular type of statement that should be categorically deemed testimonial, a subset of the broader set of testimonial statements.  I do think it's unfortunate that the Court didn't adopt that test; I think if it had some of the muddle that has since arisen would have been avoided (and more of the muddle would have been avoided if the Court had come out the other way in Giles v. California, for if there it had adopted a robust conception of forfeiture doctrine it almos tcertainly would have avoided the very unfortunate reuslt in Michigan v. Bryant.)  But I don't think that test was essential to sound confrontation doctrine.  I think the ultimate test of whether a statement is testimonial should be whether, assuming admissibility, a reasonable person in the declarant's position at the time of the statement would have anticipated likely litigation use of it.  (It doesn't seem to me that it's really difficult to define "testimonial," as Prof., Trachtenberg says, or at least to come up with a serviceable definition; I just don't think the Supreme Court has clealry signed on to the best definition, though in Melendez-Diaz it seemed on the verge of doing so.)  And under one view, not the one that I would have adopted but nonetheless a coherent one, the first part of the 911 conversation is Davis might be deemed to fall outside this, because one might say that in the heat of the moment the complainant would not have been anticipating likely evidentiary use.  (Pretty quickly, though, it became clear that this was what she was doing.  Note that at the end of the call the 911 operator said that the police would go find Davis and then come talk to the complainant – not that hey would come right away to protect her.)

Prof. Trachtenberg suggests that Davis would have "walk[ed]" if the Supreme Court had come out the other way in his case.  I don't know what would have happened in that case, but I think it's important to emphasize that excluding statements of the type involved in Davis does not mean as a general matter that the accused cannot be convicted.  The prosecution might work harder to secure the live (or deposition) testimony of the complainant; it might demonstrate that her unavailability was the result of wrongdoing causing forfeiture of the confrontation right; and it might, as it ordinarily does in a murder case, prove guilt without relying on a statement by the victim.