CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Wednesday, September 28, 2011

McAllister on Evading Confrontation

Marc Chase McAllister has posted Evading Confrontation: From One Amorphous Standard to Another (Seattle University Law Review, Vol. 35, 2011) on SSRN. Here is the abstract:

In 2004, Crawford v. Washington established a new framework to govern admission of hearsay statements under the Sixth Amendment’s Confrontation Clause. Prior to Crawford, the Roberts rule allowed such statements to be admitted upon a mere showing of “reliability.” Under Roberts, courts frequently attached different meanings to the same reliability factor (as in Crawford itself), and often reached opposite outcomes on nearly identical facts.

In overruling Roberts, Crawford’s stated goals were to curtail judicial discretion and prevent testimonial evidence from reaching the factfinder without the benefit of adversarial testing. Just seven years later, the Crawford framework has revived those very deficiencies, and the Court’s most recent ruling in this area, Michigan v. Bryant, has significantly magnified the problem. Reminiscent of Roberts, Bryant notes more than ten factors courts should use to distinguish “testimonial” from “non-testimonial” statements. Bryant further instructs courts to consider “all relevant information” and to decide each case “in context,” a classic totality-of-circumstances approach bearing striking similarities to the discredited Roberts framework.

Bryant was decided on February 28, 2011. This article examines the lower court cases that have been issued in the six months post-Bryant. As this article’s analysis reveals, Bryant’s factors test has revived the malleability of the discredited Roberts standard, and has provided easy means to evade the Sixth Amendment’s protections. For example, several post-Bryant cases have drawn opposite inferences from the same Bryant factor, the declarant’s dire medical condition. In addition, one post-Bryant case, Clay, distinguished Bryant based upon the precise wording of the questions asked, yet the two factual scenarios were virtually identical in all other respects.

A test that hinges upon the hidden and empirically unknowable primary purposes of hypothetical similarly-situated declarants and interrogators, and one which takes all relevant factors into account in making that determination, is no better than one that requires a judge to determine a statement’s “reliability.” Replacing a totality-of-circumstances test with a totality-of-circumstances test has done nothing to correct the defects of the Roberts regime. To restore the promise of Crawford, this article proposes a bright-line test to supersede Bryant’s totality-of-circumstances test, one more consistent with Crawford’s original aims.

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