LAWS PAGES

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U.S. Supreme Court
MICHAEL D. CRAWFORD, PETITIONER v. WASHINGTON (2004)

Footnotes:

  1. The court rejected the State’s argument that guarantees of trustworthiness were unnecessary since petitioner waived his confrontation rights by invoking the marital privilege. It reasoned that “forcing the defendant to choose between the marital privilege and confronting his spouse presents an untenable Hobson’s choice.” 147 Wash. 2d, at 432, 54 P.3d, at 660. The State has not challenged this holding here. The State also has not challenged the Court of Appeals’ conclusion (not reached by the State Supreme Court) that the confrontation violation, if it occurred, was not harmless. We express no opinion on these matters.
  2. There is some question whether the requirement of a prior opportunity for cross-examination applied as well to statements taken by a coroner, which were also authorized by the Marian statutes. See 3 Wigmore §1364, at 23 (requirement “never came to be conceded at all in England”); T. Peake, Evidence 64, n. (m) (3d ed. 1808) (not finding the point “expressly decided in any reported case”); State v. Houser, 26 Mo. 431, 436 (1858) (“there may be a few cases … but the authority of such cases is questioned, even in [England], by their ablest writers on common law”); State v. Campbell, 1 S. C. 124, 130 (1844) (point “has not … been plainly adjudged, even in the English cases”). Whatever the English rule, several early American authorities flatly rejected any special status for coroner statements. See Houser, supra, at 436; Campbell, supra, at 130; T. Cooley, Constitutional Limitations *318.
  3. These sources–especially Raleigh’s trial–refute The Chief Justice’s assertion, post, at 3 (opinion concurring in judgment), that the right of confrontation was not particularly concerned with unsworn testimonial statements. But even if, as he claims, a general bar on unsworn hearsay made application of the Confrontation Clause to unsworn testimonial statements a moot point, that would merely change our focus from direct evidence of original meaning of the Sixth Amendment to reasonable inference. We find it implausible that a provision which concededly condemned trial by sworn ex parte affidavit thought trial by unsworn ex parte affidavit perfectly OK. (The claim that unsworn testimony was self-regulating because jurors would disbelieve it, cf. post, at 2, n. 1, is belied by the very existence of a general bar on unsworn testimony.) Any attempt to determine the application of a constitutional provision to a phenomenon that did not exist at the time of its adoption (here, allegedly, admissible unsworn testimony) involves some degree of estimation–what The Chief Justice calls use of a “proxy,” post, at 3–but that is hardly a reason not to make the estimation as accurate as possible. Even if, as The Chief Justice mistakenly asserts, there were no direct evidence of how the Sixth Amendment originally applied to unsworn testimony, there is no doubt what its application would have been.
  4. We use the term “interrogation” in its colloquial, rather than any technical legal, sense. Cf. Rhode Island v. Innis, 446 U.S. 291, 300—301 (1980). Just as various definitions of “testimonial” exist, one can imagine various definitions of “interrogation,” and we need not select among them in this case. Sylvia’s recorded statement, knowingly given in response to structured police questioning, qualifies under any conceivable definition.
  5. The Chief Justice claims that English law’s treatment of testimonial statements was inconsistent at the time of the framing, post, at 4—5, but the examples he cites relate to examinations under the Marian statutes. As we have explained, to the extent Marian examinations were admissible, it was only because the statutes derogated from the common law. See supra, at 10. Moreover, by 1791 even the statutory-derogation view had been rejected with respect to justice-of-the-peace examinations–explicitly in King v. Woodcock, 1 Leach 500, 502—504, 168 Eng. Rep. 352, 353 (1789), and King v. Dingler, 2 Leach 561, 562—563, 168 Eng. Rep. 383, 383—384 (1791), and by implication in King v. Radbourne, 1 Leach 457, 459—461, 168 Eng. Rep. 330, 331—332 (1787). None of The Chief Justice’s citations proves otherwise. King v. Westbeer, 1 Leach 12, 168 Eng. Rep. 108 (1739), was decided a half-century earlier and cannot be taken as an accurate statement of the law in 1791 given the directly contrary holdings of Woodcock and Dingler. Hale’s treatise is older still, and far more ambiguous on this point, see 1 M. Hale, Pleas of the Crown 585—586 (1736); some who espoused the requirement of a prior opportunity for cross-examination thought it entirely consistent with Hale’s views. See Fenwick’s Case, 13 How. St. Tr. 537, 602 (H. C. 1696) (Musgrave). The only timely authority The Chief Justice cites is King v. Eriswell, 3 T. R. 707, 100 Eng. Rep. 815 (K. B. 1790), but even that decision provides no substantial support. Eriswell was not a criminal case at all, but a Crown suit against the inhabitants of a town to charge them with care of an insane pauper. Id., at 707—708, 100 Eng. Rep., at 815—816. It is relevant only because the judges discuss the Marian statutes in dicta. One of them, Buller, J., defended admission of the pauper’s statement of residence on the basis of authorities that purportedly held ex parte Marian examinations admissible. Id., at 713—714, 100 Eng. Rep., at 819. As evidence writers were quick to point out, however, his authorities said no such thing. See Peake, Evidence, at 64, n. (m) (“Mr. J. Buller is reported to have said that it was so settled in 1 Lev. 180, and Kel. 55; certainly nothing of the kind appears in those books”); 2 T. Starkie, Evidence 487—488, n. (c) (1826) (“Buller, J. … refers to Radbourne’s case … ; but in that case the deposition was taken in the hearing of the prisoner, and of course the question did not arise” (citation omitted)). Two other judges, Grose, J., and Kenyon, C. J., responded to Buller’s argument by distinguishing Marian examinations as a statutory exception to the common-law rule, but the context and tenor of their remarks suggest they merely assumed the accuracy of Buller’s premise without independent consideration, at least with respect to examinations by justices of the peace. See 3 T. R., at 710, 100 Eng. Rep., at 817 (Grose, J.); id., at 722—723, 100 Eng. Rep., at 823—824 (Kenyon, C. J.). In fact, the case reporter specifically notes in a footnote that their assumption was erroneous. See id., at 710, n. (c), 100 Eng. Rep., at 817, n. (c). Notably, Buller’s position on pauper examinations was resoundingly rejected only a decade later in King v. Ferry Frystone, 2 East 54, 55, 102 Eng. Rep. 289 (K. B. 1801) (“The point … has been since considered to be so clear against the admissibility of the evidence … that it was abandoned by the counsel … without argument”), further suggesting that his views on evidence were not mainstream at the time of the framing. In short, none of The Chief Justice’s sources shows that the law in 1791 was unsettled even as to examinations by justices of the peace under the Marian statutes. More importantly, however, even if the statutory rule in 1791 were in doubt, the numerous early state-court decisions make abundantly clear that the Sixth Amendment incorporated the common-law right of confrontation and not any exceptions the Marian statutes supposedly carved out from it. See supra, at 13—14; see also supra, at 11, n. 2 (coroner statements). The common-law rule had been settled since Paine in 1696. See King v. Paine, 5 Mod. 163, 165, 87 Eng. Rep. 584, 585 (K. B.).
  6. The one deviation we have found involves dying declarations. The existence of that exception as a general rule of criminal hearsay law cannot be disputed. See, e.g., Mattox v. United States, 156 U.S. 237, 243—244 (1895); King v. Reason, 16 How. St. Tr. 1, 24—38 (K. B. 1722); 1 D. Jardine, Criminal Trials 435 (1832); Cooley, Constitutional Limitations, at *318; 1 G. Gilbert, Evidence 211 (C. Lofft ed. 1791); see also F. Heller, The Sixth Amendment 105 (1951) (asserting that this was the only recognized criminal hearsay exception at common law). Although many dying declarations may not be testimonial, there is authority for admitting even those that clearly are. See Woodcock, supra, at 501—504, 168 Eng. Rep., at 353—354; Reason, supra, at 24—38; Peake, Evidence, at 64; cf. Radbourne, supra, at 460—462, 168 Eng. Rep., at 332—333. We need not decide in this case whether the Sixth Amendment incorporates an exception for testimonial dying declarations. If this exception must be accepted on historical grounds, it is sui generis.
  7. We cannot agree with The Chief Justice that the fact “[t]hat a statement might be testimonial does nothing to undermine the wisdom of one of these [hearsay] exceptions.” Post, at 6. Involvement of government officers in the production of testimony with an eye toward trial presents unique potential for prosecutorial abuse–a fact borne out time and again throughout a history with which the Framers were keenly familiar. This consideration does not evaporate when testimony happens to fall within some broad, modern hearsay exception, even if that exception might be justifiable in other circumstances.
  8. One case arguably in tension with the rule requiring a prior opportunity for cross-examination when the proffered statement is testimonial is White v. Illinois, 502 U.S. 346 (1992), which involved, inter alia, statements of a child victim to an investigating police officer admitted as spontaneous declarations. Id., at 349—351. It is questionable whether testimonial statements would ever have been admissible on that ground in 1791; to the extent the hearsay exception for spontaneous declarations existed at all, it required that the statements be made “immediat[ely] upon the hurt received, and before [the declarant] had time to devise or contrive any thing for her own advantage.” Thompson v. Trevanion, Skin. 402, 90 Eng. Rep. 179 (K. B. 1694). In any case, the only question presented in White was whether the Confrontation Clause imposed an unavailability requirement on the types of hearsay at issue. See 502 U.S., at 348—349. The holding did not address the question whether certain of the statements, because they were testimonial, had to be excluded even if the witness was unavailable. We “[took] as a given … that the testimony properly falls within the relevant hearsay exceptions.” Id., at 351, n. 4.
  9. The Chief Justice complains that our prior decisions have “never drawn a distinction” like the one we now draw, citing in particular Mattox v. United States, 156 U.S. 237 (1895), Kirby v. United States, 174 U.S. 47 (1899), and United States v. Burr, 25 F. Cas. 187 (No. 14,694) (CC Va. 1807) (Marshall, C. J.). Post, at 4—6. But nothing in these cases contradicts our holding in any way. Mattox and Kirby allowed or excluded evidence depending on whether the defendant had had an opportunity for cross-examination. Mattox, supra, at 242—244; Kirby, supra, at 55—61. That the two cases did not extrapolate a more general class of evidence to which that criterion applied does not prevent us from doing so now. As to Burr, we disagree with The Chief Justice’s reading of the case. Although Chief Justice Marshall made one passing reference to the Confrontation Clause, the case was fundamentally about the hearsay rules governing statements in furtherance of a conspiracy. The “principle so truly important” on which “inroad[s]” had been introduced was the “rule of evidence which rejects mere hearsay testimony.” See 25 F. Cas., at 193. Nothing in the opinion concedes exceptions to the Confrontation Clause’s exclusion of testimonial statements as we use the term. The Chief Justice fails to identify a single case (aside from one minor, arguable exception, see supra, at 22, n. 8), where we have admitted testimonial statements based on indicia of reliability other than a prior opportunity for cross-examination. If nothing else, the test we announce is an empirically accurate explanation of the results our cases have reached. Finally, we reiterate that, when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. See California v. Green, 399 U.S. 149, 162 (1970). It is therefore irrelevant that the reliability of some out-of-court statements “ ‘cannot be replicated, even if the declarant testifies to the same matters in court.’ ” Post, at 6 (quoting United States v. Inadi, 475 U.S. 387, 395 (1986)). The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it. (The Clause also does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted. See Tennessee v. Street, 471 U.S. 409, 414 (1985).)
  10. We acknowledge The Chief Justice’s objection, post, at 7—8, that our refusal to articulate a comprehensive definition in this case will cause interim uncertainty. But it can hardly be any worse than the status quo. See supra, at 27—30, and cases cited. The difference is that the Roberts test is inherently, and therefore permanently, unpredictable.