Thoughts on the Criminal Justice Legal Foundation brief in Smith v. Arizona

              I’m hoping to write more in a few days on the Arizona and SG briefs in Smith v. Arizona.  But my old friend Eric Freedman has called to my particular attention the amicus brief of the Criminal Justice Legal Foundation (CJLF), which makes some dramatic assertions, and I want to offer a few thoughts on it.

              As I understand it, the CJLF advocates doing away with the testimonial-non-testimonial distinction, and instead treating the confrontation right as simply a rule of trial procedure – that is, prescribing what rights the accused has with respect to those witnesses whom the prosecution chooses to present at trial, or maybe also with respect to those who testify at very formal proceedings.  As I will explain below, I disagree sharply with this, and I believe it ignores a whole lot of history.  But first let me note that there are some aspects of the brief with which I agree.

              One of these is that the current doctrine is murky and gives too little guidance.  That shouldn’t be a reason to throw out Crawford (and the CJLF brief relies a lot on dissents and the views of Crawford-skeptic judges).  It does mean that current doctrine can be improved on.  I agree with the CJLF that the “primary purpose” test is ahistorical and does not work well. 

              I also agree that Crawford does not account well for the allowance of dying declarations.  I agree with the CJLF that there is a long history of allowing them, and I believe that there would not be much support for a doctrine that did not do so.  Crawford made room for them by suggesting that they constituted a sui generis exception to the general principle that the maker of a testimonial statement presented against an accused must be subject to confrontation, and I agree with the CJLF that this is a patchwork, not a satisfying account.  (A patchwork can be an acceptable second-best solution, though.) As I have often argued, the solution seems rather simple:  Dying declarations should be considered as an aspect of forfeiture doctrine.  The imminence requirement should be considered as marking a boundary of the state’s duty to mitigate by providing an opportunity for confrontation.  I’ve explained this approach in numerous places, including this article.  Adopting this view would mean walking back from Giles v. California, but so far as I am concerned that would be a very good thing.  I’ll also note that the CJLF gives no account of why, even before hearsay law had gelled, courts imposed stringent requirements on dying declarations.

              Now, the CJLF says that nowhere in the early materials do we see anything like the line between testimonial and nontestimonial.  I think this misconceives a few hundred years of history.  Until the late 18^th century, there was no well-formed hearsay doctrine, nothing resembling the elaborate doctrine we have today.  But there was an elaborate law governing witnesses.  What do witnesses do?  They testify.  Many sources make clear that it was regarded as one of the glories of the English system that it insisted that witnesses give testimony face to face with the adverse party, in open court if reasonably possible, and not in any other way.  The idea of the Confrontation Clause was not just to say, “Here are the witnesses whom the prosecution has produced at trial; you may face them and cross-examine them.”  Rather, it was to ensure a system in which witnesses would be brought in to trial, or if necessary another formal testimonial proceeding such as a deposition.

              So we have to think in systemic terms:  What are the consequences of allowing, or not allowing, this evidence for how witnesses testify?  What then do we make of Rast’s notes, which the CJLF says are not close to being covered by the Confrontation Clause?  If they are not, then anyone in Rast’s position knows, “If I do not testify at trial (and perhaps even if I do) my notes may be used by a prosecutor against the person who is charged with possessing this substance.”  Then in any realistic sense we have created a system in which a lab analyst can testify against an accused by writing out lab notes.  Without ever taking an oath, or facing the accused, or answering questions under cross-examination, she can knowingly make factual assertions that she understands will be used as evidence to convict a person of a crime.  We could expect that lab analysts would often testify in this way, and other witnesses as well.  This would be not only a clear violation of the confrontation right but a profound alteration of our method of trials.