Charlie and Fern Nesson have been energetically promoting their view of the Confrontation Clause, on this blog and in other forums. I briefly responded some time ago to some of their contentions (see comments to the posting of November 25, 2014, Top side briefs and joint appendix in Ohio v. Clark; the Nessons' amicus brief, by the way, was mistakenly identified as a bottom-side brief and styled as one in favor of the respondent, but it is clearly a top-side brief in favor of the petitioner State). I promised more comments later, and here they are. Given the volume of the Nessons' writings in the last few weeks, I’m sure I could fill up a great deal of time and space replying to further commentary by them, but I intend this to be my last shot on the issue. Silence does not suggest assent!
The Nesssons’ basic theory is that the Confrontation Clause should be read as a requirement that
the prosecution present a sufficient case – that is, enough to survive a motion for judgment of acquittal – without relying on hearsay. Once it does that, then under their theory the Clause does not constrain the introduction of further evidence, even of testimonial statements by witnesses who have not confronted the accused. I think the theory has no basis in the language of the Clause, and on cursory inspection none in its history, either. It would yield bad both results on both sides, allowing statements to be admitted when they shouldn’t be and excluding them when they should be admitted.
1. As an introductory matter, I’ll respond to this question by the Nessons: "Do you not recognize that twentieth century confrontation doctrine has been a mess?"
Of course it was a mess in the twentieth century. I suppose, though, the Nessons mean to bring in the twenty-first century as well. There my answer is more nuanced. I think Crawford v. Washington got it right for the most part; Melendez-Diaz v. Massachusetts got it exactly right; Davis v. Washington began to muddle things up by speaking of primary purpose; Giles v. California made a bad mistake in not giving fuller force to forfeiture doctrine; Michigan v. Bryant further muddled things in various ways; and Justice Thomas’s insistence on a narrow formality test created confusion in Williams v. Illinois. So overall I’m disappointed with the way matters have developed since Crawford; see my recent piece, Come Back to the Boat, Justice Breyer! But Crawford is not the problem. I think the muddle was created in large part by 200 years of lack of attention to the confrontation principle, with a focus instead on the oddities of hearsay law. I suppose we shouldn’t be surprised that matters didn’t get set aright instantly with Crawford.
By the way, the Nessons claim coherence as one of the virtues of their approach. I’m not sure that’s right – note their treatment of conspirator statements, discussed below – but at best coherence comes at a steep price, including, as I’ll show below, a lot of intolerable results (both pro-prosecution and pro-defense). But there’s nothing incoherent about a testimonial approach, if properly developed. Its essence can be stated simply while standing on one leg:
A testimonial statement (essentially, one made in reasonable anticipation of litigation use) may not be introduced against an accused unless the accused has an opportunity to be confronted by the witness who made the statement, and that opportunity must occur at trial if reasonably possible. The accused may, however, forfeit the right by engaging in serious intentional misconduct that foreseeably renders confrontation impractical.That’s mighty coherent, which is not to say that it would produce no close cases.
2. I actually agree with the Nessons (and with Raymond LaMagna, a message from whom they have posted) that originally the principal value claimed for confrontation was the fact of bringing the witnesses face-to-face with the accused, not cross-examination. (Wigmore, on whom the Nessons rely, belittled the face-to-face idea). This is not surprising because the right to counsel developed late in felony cases. But I think this fact is less important than might at first appear. Sir Thomas Smith’s description of a trial in the middle of the 16th century describes an “altercation” between accuser and accused, so the accused certainly did have the opportunity to address the accuser in a challenging, adversarial way. And in Dial-In Testimony, 150 U.Pa. L. Rev. 1171, 1205 & n.125 (2002), Bridget McCormack and I showed that by the middle of the 17th century it was accepted in treason cases that the accused, even though not represented by counsel, would have an opportunity to pose questions to the prosecution witnesses. In any event, there is simply nothing incompatible between the testimonial approach and the emphasis on bringing the witnesses face-to-face. Indeed, the essence of the theory is that witnesses must testify face-to-face and not in other ways, such as by speaking privately to government officials as under the old Continental systems.
When I made this point in a prior comment, the Nessons responded: “Yes, and how can you say this and yet not recognize the Clause as a production rule?” My reply: Sure, you can call the Clause a production rule if you want, in the sense that it says, “Prosecutor, if you want to present testimony from this witness, you have to produce the witness in court.” It does not say, “If you present a barely sufficient case in court, then you can add onto it all the out-of-court testimony you want.”
3. LaMagna’s message says, as others have, that the distinction between testimonial and nontestimonial hearsay is arbitrary. I think those who make this argument are thrown off by terminology. The confrontation right is about witnesses. That, of course, is the key term used by the Confrontation Clause; it does not refer to hearsay. I think lots of history, much of it summarized in the Dial-In article, makes clear that the Confrontation Clause was meant to bring witnesses to trial. The confrontation right was established, as I have said many times before, long before anything resembling the modern law of hearsay was. (The confrontation right may be seen quite clearly in ancient times, as in the reference in the Book of Acts, 25:16, to insistence on witnesses being brought face-to-face; hearsay law didn’t develop in anything close to its modern form until about 1800.) It’s no surprise, then, that the Clause spoke in terms of witnesses and not in terms of hearsay. Now, who are witnesses? They’re people who testify (in many languages, "witness" and "testify" have the same root) – and the Clause insists that they do so face-to-face with the accused rather than behind closed doors. They’re not people who make causal statements going about their daily business. That’s the basic distinction that Crawford drew, and it’s not at all arbitrary; if the Court had spoken in terms of "witness-y" statements, it might have been accused of butchering the English language, but I don't think anybody would have said that it was drawing an arbitrary distinction. The term “testimonial hearsay” is a modern-day coinage, an anachronistic term that is meant to capture the idea of what happens when a person effectively acts as a witness without coming to trial.
4. I said that if production of a minimally adequate case is what the confrontation right meant, it would have become apparent long ago. The Nessons responded: “It was. Raleigh and Kirby are good authority for that. How do you dispute our reading of those cases?”
In reply, I’ll first amplify on my point. If the confrontation right meant what the Nessons say it does, cases over the centuries would have been argued far differently. When a prosecutor offered a testimonial statement made out of court, there would have been debate over whether the prosecution had presented a minimally adequate case at trial to prove the proposition in question, and if so, the out-of-court statement would have been admitted. There would have been, for example, considerable litigation over just what the prosecution had to prove by other evidence. Would it really be enough that the prosecution presented enough to withstand a motion for judgment of acquittal, and once that standard was satisfied the prosecution could present all the out-of-court statements (testimonial or not) that it wanted? Or would it be necessary for admission of an out-of-court statement that the prosecution had proven every single material proposition contained in the statement – and if so had it done that in the particular case? I just don’t think you see any of this at all in the cases.
I’ve already responded to the reading of Raleigh. So briefly: Sure, Raleigh was able to argue, in effect, “Cobham’s testimony is no good, and without that you’ve got an inadequate case against me.” But just as a matter of simple logic that doesn’t suggest that he was conceding – or that the historical revulsion to his treatment amounts to a concession – that if a barely adequate case were presented against him through other evidence then it would be just fine to present Cobham’s testimony without confrontation.
I think the response to the Kirby argument is similar. There, an element of the crime – that stamps were stolen – was proven by the confession, made in another case, of another party to the transaction, and the Supreme Court held this was improper. There’s nothing in the case suggesting that if there had been sufficient proper proof of the theft to get to the jury then it would be fine to introduce the confession as well.
5. I also said that if production of a minimally adequate case was what the confrontation right was about, the Confrontation Clause wouldn't have been worded as it was. The Nessons responded: “The wording of the clause says that the prosecution must confront the defendant with witnesses, not the other way around. Do you just pretend this isn't so?”
Actually, not only do I not pretend it isn’t so, I (successfully) litigated a Supreme Court case, Briscoe v. Virginia, to ensure that the point, which had been established in Melendez-Diaz, remained firmly established. I’m always careful to say that the Clause gives the accused the right “to be confronted with” the witnesses against him, not “to confront” the witnesses against him.
But note that it’s “the witnesses against him” – not just some of the witnesses against him. There is no suggestion in the language of the Clause, none whatsoever, that if the prosecution presents a minimally adequate case then other prosecution witnesses do not have to confront the accused.
The Confrontation Clause mimicked the language used in some of the early state constitutions. Other early state constitutions used the formula that was more familiar – from, among other sources, treason statutes, saying that the witnesses had to be brought “face to face” with the accused. Bridget McCormack and I quoted several of these in Dial-In Testimony, 150 U.Pa. L. Rev. at 1207 nn. 134, 135. All of them used the definite article. None contained any suggestion that production of a sufficient case might excuse production of other witnesses whose testimony the prosecution wished to use. And note a Massachusetts statute of 1647, quoted id. at 1206, providing that “in all capital cases all witnesses shall be present wheresoever they dwell” (emphasis added). If one wanted to write a provision requiring merely that sufficient proof of all elements of a crime be presented by live testimony, none of these formulations would have been appropriate.
6. The Nessons rely heavily on a passage from a 1904 article by Wigmore, repeated verbatim in § 1364 of his treatise, in which Wigmore says that in the late 17th century there was “still a doctrine, clearly recognized, that a hearsay statement may be used as confirmatory or corroboratory of other testimony.” They do not quote the sentence that immediately follows this passage, both in the article and in the treatise:
This limited doctrine as to using [a hearsay statement] in corroboration survived for a long time in a still more limited shape, i.e., in the rule that a witness’ own prior consistent statements could be used in corroboration of his testimony on the stand, and the latter was probably accepted as late as the end of the 1700s.So even taken at face value, Wigmore contends at most that there had been, well before the time of the Confrontation Clause, a doctrine generally allowing hearsay (he does not distinguish between testimonial and non-testimonial statements) as corroboration of other testimony. Wigmore does not appear to say that the hearsay could be used to corroborate circumstantial evidence; he seems to be speaking only of corroboration of testimony. Nor does he suggest that if the prosecution proved a sufficient case for the matter to be submitted to the jury, there would be no constraint on the use of hearsay. In any event, he acknowledges that the doctrine he describes withered away decades before the Confrontation Clause. The remnant was a doctrine – entirely consistent with the testimonial approach – that if the declarant testifies at trial consistently with the prior statement, the statement is admissible as corroboration. (Crawford actually goes further, and in my view too far, in suggesting that there is no confrontation problem in admitting a prior testimonial statement if the maker of the statement testifies at trial, even if inconsistently with the prior statement.) And in fact, Knox’s Trial, 7 Howell’s St. Tr. 763, 790 (1679), the first of the four cases that Wigmore cites for the broader doctrine, involves only the narrower situation of a witness’s former statement. The other cases are far less significant, even with respect to the earlier period and even with respect to the supposed doctrine described by Wigmore, than he contended. They provide no support at all for the proposition that, even in this earlier period, out-of-court testimonial statements were acceptable so long as they corroborated admissible evidence. To show involves going deep into the weeds; here is a link to a sort-of extended footnote on this point.
7. I said previously, "The Nessons are just plain wrong in contending that Crawford continues to confound confrontation and hearsay." They responded by pointing to my recent article, The Mold That Shapes Hearsay Law. They claim that the thesis of that piece “makes Crawford nothing more than a constitutional back-up hearsay rule . . . to ‘plug the holes’ [not a phrase I used, by the way] left when the hearsay exceptions let testimonial hearsay slip by.” This rendition distorts my article beyond recognition. I argued (among other points) that the confrontation principle – the idea that a party has a right to demand that adverse witnesses testify face-to-face – shaped hearsay law, so that to a surprising degree the bounds of the various exemptions conform to that principle. But over time, as the confrontation principle became obscured, the degree of this conformity loosened up. This in no sense makes the confrontation principle a constitutional backup to the hearsay rule. On the contrary, I believe the confrontation right existed long before the hearsay rule; it exists under the European Convention on Human rights, so it governs in jurisdictions where nothing resembling the hearsay rule applies; and if, as I hope, the hearsay rule as we know it is eliminated, the right will still exist. (I have an article soon to come out in DePaul Law Review, titled Jack Weinstein and the Missing Pieces of the Hearsay Puzzle, discussing this.)
The Nessons’ argument on this score is particularly perplexing to me because their own theory of confrontation is so heavily dependent on a definition of hearsay. Here is a passage from their amicus brief in Clark:
Confrontation cases fall into two categories. In one category are the cases in which the non-hearsay and circumstantial evidence against the defendant is sufficient to convict. In this category, hearsay may corroborate the prosecution’s case but is not essential to it. This means that, even without the hearsay, the prosecution would survive a motion for dismissal at the close of the prosecution’s case.8. As I understand the Nessons’ theory, its restrictive aspect – that an element of the prosecution’s case cannot be proved by hearsay alone – applies whether or not a statement falls within a traditional exception (and whether or not it is testimonial in nature). Some impractical results, representing remarkable and unjustified changes from long-prevailing practices, would follow.
The second category consists of cases in which there is a hole in the prosecution’s proof that it tries to fill with hearsay. Without the hearsay, the prosecution’s case is legally insufficient. In this category, the hearsay, if admitted in evidence, is not merely corroborative of an otherwise sufficient case, but rather is essential to it. The admission of hearsay in such a case as a substitute for live testimony should violate the Confrontation Clause.
Others have already commented on two illustrations. Roger Park raised the case of business records. The Nessons shrugged aside the particular illustration presented by Roger on the basis that it involved a jurisdictional issue. But of course that is not always the case. It is often part of a prosecutor’s case to prove that a given transaction occurred at a particular time, and perhaps at a particular price. For centuries, the shopbook rule has made clear that this may be done by bringing in records that can be shown to have been prepared as part of a business routine, rather than in contemplation of litigation. Under the testimonial approach, by contrast, these statements are easily handled: Statements that are not made in contemplation of litigation are not testimonial (contrast most lab reports), and the Confrontation Clause has nothing to do with them.
The other, raised by Alex Whiting, involves conspirator statements. The Nessons shrug this aside, too, saying that a statement made during the course of and in furtherance of a conspiracy of which the accused is a part is deemed to be a statement of the accused. Well, that’s what the prevailing hearsay law says, but one of the virtues of the testimonial approach is that it frees us from having to spout such fictions. Of course if A and B are both members of a conspiracy and B makes a statement that may be deemed to advance the conspiracy’s goals, that statement is not truly A’s statement. The fictitious quality of a rule deeming such a statement to be one made by A is augmented by courts’ willingness to perceive very far flung conspiracies and to be creative in imagining how given statements may have advanced the aims of the conspiracy. I should emphasize that I am not suggesting that conspirators’ statements should be inadmissible. On the contrary, I think they should be, and the courts’ tendency to stretch the hearsay exemption for them is perfectly understandable. Though these statements are often dubious, often they are very probative evidence. The reason they should be admitted against an accused is not that they are in any meaningful sense a statement of the accused but that they are not testimonial in nature; they are statements made in the ordinary course of daily (dirty) business.
A third case is dying declarations. These have been admitted for three centuries or so, and I don’t think any theory that put a flat ban on them would be happily tolerated. They often provide critical information not corroborated by any other evidence. As I understand it, the Nesssons’ theory would bar prosecution based on a dying declaration. Perhaps they would concede to reality, at the price of undermining coherence, by creating an exception to their theory. (Crawford, similarly, suggested that dying declarations may be a sui generis exception to the treatment of testimonial statements. I have argued repeatedly that these cases would be better handled by applying forfeiture doctrine to them. It would require a significant alteration of the holding in Giles v. California to achieve this result; this is one reason among several to hope for such an alteration.)
* * *
The time I've spent responding to the Nessons reflects my longstanding connections to both of them and my personal regard for the. But I suppose I've conveyed that I don't think much of their theory.