Justice Breyer's "30 exceptions" concern

A notable moment in the argument of Ohio v. Clark came when Justice Breyer acknowledged “misgivings” about confrontation doctrine and identified what he felt was the source:

I don’t want to see the Confrontation Clause swallow up the 30 exceptions to the hearsay rule, and therefore you have to draw lines. . . .

What’s at issue here to me, is the problem of not having th[e] Confrontation Clause swallow up the 30 exceptions which are necessary in many instances for the justice[] of a trial.

Argument transcript, at 49.

It seems to me this is a concern that Justice Breyer has expressed repeatedly, though perhaps not so clearly, at the argument of Confrontation Clause cases.  In this post, I’ll first elaborate on what I understand the concern to be, and then explain why I believe that the consequence that Justice Breyer hypothesizes, while certainly a valid matter to consider, does not in fact arise and need not constrain development of Confrontation Clause doctrine.

I think what Justice Breyer is responding to is basically this:  Over 200 years, a complex web of hearsay law has been worked out, reflecting judgments of what hearsay should be admissible and what not.  Then in 2004 along comes Crawford v. Washington, stating a big, blunt rule that, with very few qualifications (forfeiture, maybe dying declarations) excludes a significant category of hearsay when offered against an accused, unless the maker of the statement is unavailable and the accused has had an opportunity for confrontation.  So the concern, as I understand it, is that by following the theory of Crawford we will be denying the adjudicative system of important information it needs to achieve just results.

Now of course at one level we should not be concerned if the Confrontation Clause requires exclusion of evidence that escapes the rule against hearsay:  These are two separate bodies of doctrine, and just because a statement is not excluded by the rule against hearsay does not mean that the statement should be admissible; a given jurisdiction’s hearsay rule does not preempt all other exclusionary doctrines, especially a constitutional one such as the Confrontation Clause.

Nevertheless, I think Justice Breyer raises a legitimate concern.  The motivations underlying the confrontation right and the rule against hearsay are sufficiently similar that we might be very uncomfortable with a new theory of the confrontation right that rendered inadmissible wide swaths of prosecution evidence that for centuries have passed through hearsay screening.  (I know, the Confrontation Clause has nothing to do with reliability, and according to standard doctrine reliability is one of the principal factors determining whether statement is exempted from the rule against hearsay.  But I don't buy the standard doctrine.)   At least any large-scale exclusions of previously admissible evidence should make us take a reality check of the theory that causes the exclusions.  So, for example, I think that any theory of the Confrontation Clause that would generally render inadmissible statements made by a conspirator of the accused, during the course of and in furtherance of the conspiracy, would not have been viable.  (And in fact some passages in the Crawford argument suggest strongly that the Supreme Court would not have adopted the testimonial approach in that case had it thought that this would be the result; it was Justice Breyer who pointed out that a sound conception of what is testimonial avoids the problem, because such a statement is not made in reasonable anticipation of evidentiary use.  Argument transcript at 14;  for a copy of the transcript with questioners identified, click here.)

But in fact I do not think there is a real problem.  Conscientious adherence to the confrontation right requires exclusion of surprisingly little evidence that would not be excluded by prevailing hearsay law as expressed in the Federal Rules of Evidence, which has become the dominant modern template for ordinary evidence law in the United States.  Indeed, I think that there are only three basic areas in which this has occurred regularly since Crawford – and even in those it was only relatively recent doctrinal changes, or in some cases an essential abandonment of doctrine, that prevented hearsay law from excluding the statements:

First, before Crawford some courts had been admitting third-party confessions and statements made in formal, judicially supervised settings, such as grand jury testimony and allocution hearings.  Sometimes this was done under the hearsay exception for declarations against interest.  But extension of this exception to statements exposing the declarant to criminal liability and offered to inculpate the accused was a 20th-century development, greatly accelerated by the Federal Rules themselves.  And often application of the exception in that context appeared dubious, because it was not clear that the portion of the statement inculpating the accused was genuinely against the declarant’s interest.  And sometimes admission of these statements was allowed under the residual exception to the hearsay rule, which of course provided virtually no constraints at all.  As I understand it, post-Crawford admission of these statements, absent unavailability and an opportunity for cross, has essentially ceased, and I haven’t heard any complaints about that development.

Second, particularly in the decade or so before Crawford, many courts admitted relatively fresh statements describing a criminal incident.  As in Hammon v. Indiana, many of these got past the hearsay bar on generous interpretations of the exceptions for excited utterances or statements of present sense impression.  This was the phenomenon that Bridget McCormack and I described as dial-in testimony.  Since Crawford, this practice has been limited, but hardly eliminated.

Finally, there are forensic lab reports, as in Melendez-Diaz v. Massachusetts; it was only under generous interpretations of, or modern additions to, the exceptions for public and regularly kept records that in the previous decades some jurisdictions (not all!) let these get these past the hearsay rule.

Those are significant areas, to be sure, but they hardly represent the destruction of the web of hearsay exemptions.  (I'll sometimes use the term "exemptions" here because, covering carve-outs from the definition of hearsay, it's more inclusive than "exceptions".)  Why has Crawford not created havoc with hearsay law?   The fundamental reason, as I argued last year in an essay titled The Mold that Shapes Hearsay Law, 66 Fla. L. Rev. 433, 449-58 (2014), is that, to a perhaps surprising degree, prevailing hearsay law, as expressed in the Federal Rules of Evidence, replicates the confrontation principle as expressed in Crawford.  What I call the confrontation principle is the general principle that one should not be allowed to testify against a party unless that party has had a chance to cross-examine, face to face, the witness who gave the statement.  And I’ll add that if one makes a statement aware of its likely use in litigation and it is admitted at trial against a party, then the maker of the statement is effectively a witness against that party.

So I’ll make three claims.   First, a descriptive claim: The rule against hearsay, as reflected in the Federal Rules, tends to conform to the confrontation principle.   That is, to a large extent, the hearsay rule tends to require exclusion of a statement if and only if  violates the confrontation principle.  That is why I call the confrontation principle the mold that shapes hearsay law.  Second, an historical claim:   The confrontation right developed before the hearsay rule, and the hearsay rule developed largely in conformity to the confrontation principle.  Over time, as the hearsay rule came to dominate the scene, it obscured the confrontation right, and the tie between the two diminished to some extent, but it is still strong.  And finally, a normative claim: To a very large extent, what is worth preserving of the rule against hearsay lies in the confrontation principle; we’d be better off throwing the rest of the rule against hearsay away.

I’ll begin with, and devote most of the remainder of this post to, the descriptive claim (though bits of history will creep in), because I think it’s most directly responsive to Justice Breyer’s concern.  I contend that if (a) a statement is made in anticipation of evidentiary use, (b) the statement is offered at trial for its truth, and (c) the declarant does not testify at trial, then the statement will probably be excluded by hearsay law unless either (c)(1) the declarant is unavailable and (2) the party-opponent has had an adequate opportunity for cross-examination, or (d) the opponent has forfeited the objection.  And in circumstances in which this principle does not require exclusion, hearsay law tends to be receptive to the evidence.

Note at the outset several structural limitations common to both the Confrontation Clause and hearsay law:

1. If a party makes or adopts a statement and it is then offered against him, there is no problem under either the Confrontation Clause or hearsay law. As has often been said, an accused has no right to confront himself.  Fed.  R. of Evid. 801(d)(2)(A) and (B) exempt from the hearsay rule statements made or adopted by the party-opponent.

2.  If the statement in question is not offered for the truth of a proposition that it asserts, then neither confrontation doctrine nor the rule against hearsay applies.  Crawford makes this explicit.  And so does Fed. R. Evid. 801(c)(2)

3.  If the declarant testifies at trial, that eliminates the confrontation problem (under prevailing doctrine) and it may eliminate the hearsay problem.  FRE 801(d)(1), 803(5).  Again, Crawford is explicit on this point.

4.  Neither the Confrontation Clause nor the rule against hearsay will block admission of a testimonial statement made out of court if the witness is unavailable to testify at trial and the party opponent has had an adequate opportunity for cross-examination.  Once again, Crawford is explicit on this point, which reflects long-standing practice, and which is established with respect to hearsay law by Fed. R. Evid. 804(b)(1).

5.  Both the confrontation right and an objection to the hearsay rule may be forfeited by at least some wrongful conduct that renders the declarant unavailable to testify at trial.  Fed. R. Evid. 804(b)(6) establishes forfeiture doctrine as part of hearsay law, and Crawford recognized the doctrine as part of the law governing the Confrontation Clause.   Fed. R. Evid. 804(b)(2) states a dying declaration exception to the rule against hearsay; I have argued many times that the best account for this exception is as an example of forfeiture.  But even putting aside that theory, Crawford suggests strongly that, on unique historical grounds, there may be an exception to the confrontation right for dying declarations.  Once again, this is not a type of evidence that passes hearsay scrutiny but then is excluded by the Confrontation Clause.

Note that these structural principles account for several of the important exemptions to the hearsay rule.  So now let's look at those that these principles haven't accounted for.   What we'll find is that in almost all circumstances the exemptions are crafted in such a way that, especially if conscientiously applied, they do not apply to statements made in anticipation of litigation use.  And we'll see that, when these exemptions have been applied to such statements, it is almost certainly a latter-day extension or peripheral application of the exemption.

Fed. R. Evid. 801(d)(2)(C), (D), and (E) address what are sometimes called vicarious admissions (respectively, statements by an agent authorized by the principal, statements by an agent on the subject matter of the agency, and conspirator statements).  Statements falling within these categories are almost by definition made in the course of going about one's business, without anticipation of litigation use; they are not testimonial.  Notice in particular conspirator statements, made during the course of and in furtherance of the conspiracy.  Such statements are clearly not made in anticipation that they will be used in prosecution.  This is the point made by Justice Breyer at the Crawford argument, as noted above.

Fed. R. Evid. 803 (1) - (4) is the family of spontaneous declarations -- present sense impressions, excited utterances, statements of current bodily, emotional, or mental condition, and statements made for purposes of medical diagnosis or treatment.  At the time of the framing, there were no such exceptions; all there was, well into the 19th century, was the res gestae doctrine, the idea that statements that themselves formed part of the story being told could be admitted on a non-hearsay basis.  As late as 1879, in R. v.Bedingfield, 14 Cox's Crim. Cas. 341, a statement made by a woman whose throat had just been slashed seconds before was held not admissible to prove the identity of the assailant.  (I think it probably should have been admissible on forfeiture grounds, but that's another matter.)  In the first decade of the 20th century, Wigmore wrote that for a generation a hearsay exception had been recognized for statements of this sort.  But the exception was still tightly confined to statements made very close to the time of the event.  In the late years of the 20th century, courts became far less restrained, being willing to characterize statements made long after the event as spontaneous.  Meanwhile, the exception for statements made for purpose of medical diagnosis and treatment grew out of the one for statements of current condition; the Federal Rules accelerated the development by making the exception apply to statements of past events related to the diagnosis or treatment.
 

Fed. R. Evid. 803(6) - (10) is the family of exceptions for public and routinely kept records (and the absence of them).  Most of these are made before the litigation arises.  Traditionally, as Melendez-Diaz pointed out, these exceptions did not apply to statements made with litigation in mind.  See, e.g., Palmer v. Hoffman, 318 U.S. 109 (1943).  And to a considerable extent the exceptions are crafted to make sure that they do not include such statements when offered against an accused.  See, e.g., Rule 803(8)(a)(ii) ("a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel"), (iii) ("a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel").  It was only very modern developments – occasional generous interpretations of these rules but more frequently special-purpose statutes – that allowed forensic lab reports to get past the hearsay rule in many jurisdictions.  Such statutes were invovled, for instance, in Melendez-Diaz and Briscoe v. Virginia,  130 S.Ct. 1316 (2010), the two recent Supreme Court cases involving formal admission of such reports without live testimony.  

Fed. R. Evid. 803(11) - (21),  (23), 804(b)(4)  –  Here is the great run of hearsay exceptions, perhaps what Justice Breyer had in mind more than anything else, covering records of religious organizations, family records, documents affecting interests in property, ancient documents, market reports, statements in learned treatises and the like, reputation, certain judgments, and statements of personal or family history.  Pretty much all of these will have been made before the present case arose pretty much all of the time, and they are almost certainly made without reference to the particular subject matter of the present case, especially if that case is a criminal one.  They are almost universally not testimonial for purposes of the Confrontation Clause.  So far as I am aware, none of these have ever raised an issue under Crawford. 

Fed. R. Evid. 803(22)  – This is an exception for certain judgments of previous convictions when offered to prove "any fact essential to the judgment".  Under a primary-purpose test, I don't think these are testimonial.  Under a reasonable-anticipation test, perhaps they are; one suffering the judgment of conviction might anticipate the later use of the judgment in another litigation.  But these judgments are used principally against the person who suffered the conviction, and usually, I think, in civil cases.  Even when used in a criminal case, this hearsay exception seems to amount to a lesser form of issue preclusion.  In any event, I am unaware of any cases since Crawford having raised an issue under this exception.

Fed. R. Evid. 804(b)(3) – This is the exception for declarations against interest.  In the case of Thomas Tong, 84 Eng. Rep. 1061 (1662), the judges of King's Bench agreed unanimously that a confession could be introduced against the person who made it but not against his former confederate.  This fundamental principle likely underlay the traditional resistance of courts, as there developed a hearsay exception for declarations against interest, to apply the exception to statements against penal interest.  The Federal Rules wiped out that limitation.  The Advisory Committee said the limitation was "indefensible in logic" but in saying so it pointed to Justice Holmes' well-known dissent in Donnelly v. United States, 228 U.S. 243 (1913), a case involving the confession of another person offered by the accused.   With respect to statements admitting guilt and inculpating the accused, the Committee did not advert to the sharp line established by Tong's Case but said that such a statement, if "made while in custody, may well be motivated by a desire to curry favor with the authorities and hence fail to qualify as against interest."  Nevertheless, in the years preceding Roberts, some courts admitted such statements.  And the Supreme Court consistently resisted these efforts.  It held in Lee v. Illinois, 476 U.S. 530 (1986), that the concept of declaration against interest "defines too large a class for meaningful Confrontation Clause analysis" and that, "when one person accuses another of a crime under circumstances in which the declarant stands to gain by inculpating another," there was presumptively a violation of the Clause.  It went further in Lilly v. Virginia, 527 U.S. 116 (1999), holding explicitly that "accomplices’ confessions that inculpate a criminal defendant are not within a firmly rooted exception to the hearsay rule as that concept has been defined in our Confrontation Clause jurisprudence." And, in a foreshadowing of Crawford, the Court noted that the statements at issue there "were obviously obtained for the purpose of creating evidence that would be useful at a future trial."  (Justice Breyer's concurrence was a broader foreshadowing of Crawford)  This still didn't put a complete stop to the practice, because some courts concluded that the particular third-party confession at stake was supported by individualized guarantees of trustworthiness.  That's what happened in the state courts in Crawford itself.

And finally, there is the residual exception, now in Fed. R. Evid. 807.  In restoring the residual exception, which the House had deleted, the Senate Judiciary Committee said, "It is intended that the residual hearsay exceptions will be used very rarely, an only in exceptional circumstances."  But over time, courts used it rather freely, applying it even to admit grand jury testimony against criminal defendants.  I'm not sure if anybody defends such uses now (absent evidence indicating forfeiture); they seem blatantly in disregard of any plausible theory of the confrontation right.   Indeed, the residual exception is so open-ended – it doesn't define a category of statements by circumstances, but only gives criteria guiding the decision – that I suspect it was not have been one that Justice Breyer had in mind when he expressed his "swallowing up" concern.

To sum this up, it appears clear that, for the most part, hearsay law (especially as applied to statements offered against an accused) conforms to the basic principles of confrontation doctrine. There are departures, of course, but they are almost all a result of latter-day extensions of or peripheral expansions of the hearsay exemptions.   And with respect to most of those departures, I don't think there's even all that much controversy over the proposition that the confrontation right should be understood to trump hearsay law's tolerance of the statement.  That is, I don't think too many people think that (absent forfeiture) grand jury testimony ought to be admissible against an accused, or confessions and other statements deemed to be against interest, made knowingly to the authorities, and describing criminal conduct (as in Lee, Lilly, and Crawford), or accusatory statements like Amy Hammon's made to the police in her living room while her husband was held at bay, a considerable time after the alleged incident.  There's considerable resistance, of course, to applying the confrontation right to forensic lab reports.  Notice, though, that not only was introduction of those reports a relatively new phenomenon, but because admissibility was usually achieved by a special-purpose statute rather than a hearsay exception as such, they do not illustrate the "swallowing up" concern.

If I'm right in my descriptive claim, that to a very considerable extent the rule against hearsay conforms to the confrontation principle, how did that come to be historically?  I think part of the explanation lies in the fact that the confrontation right developed long before the hearsay rule as we know it.  It's been a commonplace in the common-law tradition since the 16th century that witnesses testify live, face to face.  Sometimes this principle was enforced by using the word hearsay, but until the last years of the 18th century at the earliest there was nothing resembling the hearsay law as we know it – with a definition of hearsay expansive enough to reach any out-of-court statement introduced to prove the truth of a matter asserted in it, and even conduct offered to prove the truth of a belief apparently motivating the conduct, see, e..g., Wright v. Tatham, 7 E.R. 559, V Clark & Finnelly 670 (H.L. 1838), but modified by a long list of exceptions.  It is not surprising, then, that as the language of hearsay became dominant the newly developing rule incorporated the old principle.  Over time, I believe that because hearsay law was so broad, it occluded the confrontation principle lying at its core.  It was obvious that such a broad rule of exclusion at times impaired the search for truth, and so it must have exceptions, and because the hearsay rule was not conceptualized in terms of witnesses or testimony, and ran far beyond the scope of testimonial statements, the exceptions were not conceptualized in those terms, either, and sometimes they tended to chip away at the confrontation right. In a sense, to put a spin on Justice Breyer's concern, the right began, to some extent, to be swallowed up by the exceptions to the hearsay rule.

But that development only went so far, and my explanation lies in my normative claim:  What's really worth preserving in the hearsay rule, or at least most of it, lies in the confrontation principle.  I think that this can be demonstrated by a thought experiment.  Think of a situation – civil or criminal case – in which it seems really clear that hearsay ought not be admitted.  I'll be that the statement in that situation was testimonial – i.e., made in anticipation of use in litigation.  So I think that sense, that we really ought not let people testify against others without having to face them and answer questions, has continued to have a powerful hold on us, and has shaped hearsay law over the last couple of centuries even when it hasn't been well articulated.  And as a result we continue to have a high degree of conformity between the confrontation principle and hearsay law.

If I'm right about all that, then as a matter of policy we ought to think about transforming hearsay law so that, instead of an exclusionary rule punctuated by a Swiss-cheese-like array of exceptions, we articulate general principles constraining the use of testimonial statements.  (I think how those principles play out may be very different when the statement is not offered against an accused.)  I've written a law review article, soon to be published, outlining how this might work out; I'll provide a link here as soon as the editors let me.  I'm tempted to say that as a matter of policy, the confrontation principle should swallow up and replace hearsay law as we know it.

But that's another matter, for the crafters of state and federal evidence law.  For now, I think the key point is this:  Sure, conscientious adherence to the confrontation right calls for some results different from those that had come to be tolerated after many years of inattention to and misunderstanding of the right.  But for the most part this effect is limited to a few salient areas.  For the most part, the confrontation right does not swallow up hearsay law because for the most part hearsay law already conforms to the right.