For decades, I have benefited from the extraordinary efforts of three friends to keep me informed on matters I should know about – my co-clerk Ed Krugman, my former law-firm colleague Eric Freedman, and regular blog reader Stu Dedopoulos. On Monday, all three of them told me about the cert denial in Franklin v. New York. Justices Alito and Gorsuch issued very different statements accompanying the denial. I haven’t been able to offer my thoughts before today, but I’m glad to do so now.
First,
Justice Alito’s statement. He contends
that in a future case the Court should reconsider Crawford. This isn’t entirely surprising news. As a very junior justice, he joined in the
8-1 decision in Davis v.
Washington, but in Giles v. California he expressed misgivings about Hammon v. Indiana, which
was part of the Davis decision and held the statements there to
be subject to the Confrontation Clause.
And he was one of the dissenters in Melendez-Diaz and Bullcoming, and author of the prevailing opinion in Williams v. Illinois and
of a separate opinion in Smith v.
Arizona, echoing the views of
those earlier opinions. But in Smith,
the prior Gang of Four was reduced to two, and in Franklin Justice Alito stands
alone; that is probably good news. Justice Alito based his argument on two
points – that Crawford does not clearly reflect the original
meaning of the Confrontation Clause and that it has proved unpredictable in
application.
Justice
Alito says that Crawford’s
treatment of a person who makes a testimonial statement as a witness for purposes
of the Confrontation Clause is “radically different” from the meaning of the term witness elsewhere
in the Constitution; his point is that elsewhere the term “refer[s] to people who
testify in court.” Three responses.
First,
there really is no incompatibility. As Justice
Alito recognizes, the Compulsory Process Clause, on which he puts his primary
reliance, gives a defendant the right to subpoena witnesses to come to court to
testify in his favor. The Confrontation
Clause, which as he recognizes, is the other side of the coin, gives the
defendant a right to demand that those who testify against him do so in court. (On both sides, we must recognize a qualification;
if the witness cannot come to trial, a deposition might do.)
Second,
what do witnesses do? They testify; they give testimony. In
English, as I have pointed out, we have different words for witnesses and what they
do, but in many other languages they are the same root. (For instance, témoin and témoinage in French.)
There are various ways in which one might give testimony, some of which are
allowed in other jurisdictions, but as Crawford makes
clear the way that is acceptable under the Confrontation Clause is face to
face, presumably at trial. So the
difference really isn’t a different meaning of the word witnesses, but a different
function of the respective clauses. The Compulsory
Process Clause gives the defendant the right to bring favorable witnesses to
court, the Treason Clause requires the prosecution to bring two witnesses to
court, and the Confrontation Clause more generally gives the defendant the
right to insist that the prosecution bring its witnesses to court.
Justice
Alito goes on to cite academic literature that in his view casts doubt on Crawford’s
perception of Framing-era practice with respect to “what we now call hearsay.” I’m not going to try to get into an extended
historical argument here. But two quick
points: I think it is clear that the
Confrontation Clause was not rooted in a doctrine resembling the modern law of
hearsay; it was, and is, a rule about how witnesses give testimony. Second, the laser-like focus in some of the
literature on the Framing era – what did the Framers know, and when did they
know it – while historically interesting, doesn’t resolve the question that is
important for construing the Clause. The
norm that prosecution witnesses must testify
face to face, ordinarily in open court, and not by, say, giving a statement in
private to a government official, had developed over hundreds of years, and had
ancient roots; Crawford clearly
recognized this and was dead right about it.
And
that ties in to my third point. Justice
Alito’s apparent belief that the Confrontation Clause gives the accused rights
only with respect to those witnesses who testify in court (a theory at one
point adopted by the second Justice Harlan) would be an utter disaster. It would allow a prosecutor to try a case entirely
by affidavit, putting the burden on the defense to compel the attendance of
those affiants it wanted to examine (if they were even available, and presumably
with only non-leading questions allowed).
That has never been how a common-law criminal trial has been conducted.
As
to unpredictability, as my colleague Rick Lempert has pointed out there is a
certain degree of chutzpah in
Justice Alito’s claim, because much of the unpredictability has been attributable
to his own promotion of untenable theories. (A statement not directed against a
“targeted individual” cannot be testimonial.
Really? A description of the crime
scene? A description of the crime
itself, without any information identifying the perpetrator?) As Crawford pointed
out, Roberts was inherently unpredictable. The Supreme Court can
develop a sturdy conception of what is testimonial; it just hasn’t done so
yet. But let’s bear in mind that it’s
just a little over twenty years since Crawford was
decided, and the Court addresses the issue only very occasionally. (It reminds me of the old joke about a member
of a religious order who is allowed to speak only every ten years, to the abbot. After ten years, he says, “The beds are hard.”
After twenty, “The food stinks.” After thirty, “I quit.” And the abbot replies, “Not surprising; you’ve
been doing nothing but complaining for thirty years.”)
I’ve
said the Court can
develop a sturdy conception of the meaning of the Confrontation Clause, and
that brings me to Justice Gorsuch’s statement.
As in Smith, he
casts doubt on the “primary purpose” test.
Well, good for him, because that test truly is inherently unpredictable
and manipulable; Justice Thomas pointed this out from the start. A test based on the reasonable anticipation
of a person in the position of the purported witness would provide good
guidance and would express the essence of what the Clause is about. That does not mean, of course, that there
would be no close cases. But that is
true of just about any area of law. When
the Court heard argument in Ohio v. Clark, there was so much dissatisfaction
with the “primary purpose” test that I thought it might be on the chopping
block. But in the end, Justice Alito’s
opinion for the Court stuck with the test, and the Court doubled down on it, at
least to some extent, in Smith. But I always say the future is bigger than
the past, and there’s plenty of future in which the Court can change
course. Perhaps continued dissatisfaction
with the “primary purpose” test, and pressure from Justice Gorsuch to take a
different course within the Crawford
framework (and perhaps even Justice Alito’s pressure from outside that framework)
will cause the Court to take another look.
