# White v. Illinois/Concurrence Thomas

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Thomas
Justice THOMAS, with whom Justice SCALIA joins, concurring in part and concurring in the judgment.
The Court reaches the correct result under our precedents. I write separately only to suggest that our Confrontation Clause jurisprudence has evolved in a manner that is perhaps inconsistent with the text and history of the Clause itself. The Court unnecessarily rejects, in dicta, the United States' suggestion that the Confrontation Clause in general may not regulate the admission of hearsay evidence. See ante, at 352-353. The truth may be that this Court's cases unnecessarily have complicated and confused the relationship between the constitutional right of confrontation and the hearsay rules of evidence.
The Confrontation Clause provides simply that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. . . ." U.S.C.onst., Amdt. 6. It is plain that the critical phrase within the Clause for purposes of this case is "witnesses against him." Any attempt at unraveling and understanding the relationship between the Clause and the hearsay rules must begin with an analysis of the meaning of that phrase. Unfortunately, in recent cases in this area, the Court has assumed that all hearsay declarants are "witnesses against" a defendant within the meaning of the Clause, see, e.g., Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980); Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986); Idaho v. Wright, 497 U.S. ----, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990), an assumption that is neither warranted nor supported by the history or text of the Confrontation Clause.
There is virtually no evidence of what the drafters of the Confrontation Clause intended it to mean. See California v. Green, 399 U.S. 149, 176, n. 8, 90 S.Ct. 1930, 1944, n. 8, 26 L.Ed.2d 489 (1970) (Harlan, J., concurring); Dutton v. Evans, 400 U.S. 74, 95, 91 S.Ct. 210, 222-223, 27 L.Ed.2d 213 (1970) (Harlan, J., concurring in result); Baker, The Right to Confrontation, The Hearsay Rules, and Due Process-A Proposal for Determining When Hearsay May be Used in Criminal Trials, 6 Conn.Law Rev. 529, 532 (1974). The strictest reading would be to construe the phrase "witnesses against him" to confer on a defendant the right to confront and cross-examine only those witnesses who actually appear and testify at trial. This was Wigmore's view:
"The net result, then, under the constitutional rule, is that, so far as testimony is required under the hearsay rule to be taken infrajudicially, it shall be taken in a certain way, namely, subject to cross-examination-not secretly or ex parte away from the accused. The Constitution does not prescribe what kinds of testimonial statements (dying declarations or the like) shall be given infrajudicially-this depends on the law of evidence for the time being-but only what mode of procedure shall be followed-i.e., a cross-examining procedure-in the case of such testimony as is required by the ordinary law of evidence to be given infrajudicially." 5 J. Wigmore, Evidence § 1397, p. 159 (J. Chadbourn rev. 1974) (footnote omitted) (emphasis modified).
The Wigmore view was endorsed by Justice Harlan in his opinion concurring in the result in Dutton v. Evans, supra, at 94, 91 S.Ct., at 222. It also finds support in the plain language of the Clause. As Justice SCALIA recently observed:
"The Sixth Amendment does not literally contain a prohibition upon [hearsay] evidence, since it guarantees the defendant only the right to confront the 'witnesses against him.' As applied in the Sixth Amendment's context of a prosecution, the noun 'witness'-in 1791 as today-could mean either (a) one 'who knows or sees any thing; one personally present' or (b) 'one who gives testimony' or who 'testifies,' i.e., '[i]n judicial proceedings, [one who] make[s] a solemn declaration under oath, for the purpose of establishing or making proof of some fact to a court.' 2 N. Webster, An American Dictionary of the English Language (1828) (emphasis added). See also J. Buchanan, Linguae Britannicae Vera Pronunciatio (1757). The former meaning (one 'who knows or sees') would cover hearsay evidence, but is excluded in the Sixth Amendment by the words following the noun: 'witnesses against him.' The phrase obviously refers to those who give testimony against the defendant at trial." Maryland v. Craig, 497 U.S. [----, ----, 110 S.Ct. 3157, 3173, 111 L.Ed.2d 666] (1990) (dissenting opinion).
The difficulty with the Wigmore-Harlan view in its purest form is its tension with much of the apparent history surrounding the evolution of the right of confrontation at common law and with a long line of this Court's precedent, discussed below. For those reasons, the pure Wigmore-Harlan reading may be an improper construction of the Confrontation Clause.
Relevant historical sources and our own earlier decisions, nonetheless, suggest that a narrower reading of the Clause than the one given to it since 1980 may well be correct. In 16th-century England, magistrates interrogated the prisoner, accomplices, and others prior to trial. These interrogations were "intended only for the information of the court. The prisoner had no right to be, and probably never was, present." 1 J. Stephen, A History of the Criminal Law of England 221 (1883). At the trial itself, "proof was usually given by reading depositions, confessions of accomplices, letters, and the like; and this occasioned frequent demands by the prisoner to have his 'accusers,' i.e., the witnesses against him, brought before him face to face. . . ." Id., at 326. See also 5 Wigmore, supra, § 1364, at 13 ("there was . . . no appreciation at all of the necessity of calling a person to the stand as a witness"; rather, it was common practice to obtain "information by consulting informed persons not called into court"); 9 W. Holdsworth, History of English Law 227-229 (3d ed. 1944). The infamous trial of Sir Walter Raleigh on charges of treason in 1603 in which the Crown's primary evidence against him was the confession of an alleged co-conspirator (the confession was repudiated before trial and probably had been obtained by torture) is a well-known example of this feature of English criminal procedure. See Pollitt, The Right of Confrontation: Its History and Modern Dress, 8 J.Pub.L. 381, 388-389 (1959); 1 Stephen, supra, at 333-336; 9 Holdsworth, supra, at 216-217, 226-228.
Apparently in response to such abuses, a common-law right of confrontation began to develop in England during the late 16th and early 17th centuries. 5 Wigmore, supra, § 1364, at 23; Pollitt, supra, at 389-390. Justice Story believed that the Sixth Amendment codified some of this common law, 3 J. Story, Commentaries on the Constitution of the United States 662 (1833), and this Court previously has recognized the common-law origins of the right. See Salinger v. United States, 272 U.S. 542, 548, 47 S.Ct. 173, 175, 71 L.Ed. 398 (1926) ("The right of confrontation did not originate with the provision in the Sixth Amendment, but was a common-law right having recognized exceptions"). The Court consistently has indicated that the primary purpose of the Clause was to prevent the abuses which had occurred in England. See Mattox v. United States, 156 U.S. 237, 242, 15 S.Ct. 337, 339, 39 L.Ed. 409 (1895) ("The primary object of the [Confrontation Clause] was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness . . ."); California v. Green, 399 U.S., at 156, 90 S.Ct., at 1934 ("It is sufficient to note that the particular vice that gave impetus to the confrontation claim was the practice of trying defendants on 'evidence' which consisted solely of ex parte affidavits or depositions secured by the examining magistrates, thus denying the defendant the opportunity to challenge his accuser in a face-to-face encounter in front of the trier of fact"); id., at 179, 90 S.Ct., at 1946 (Harlan, J., concurring) ("From the scant information available it may tentatively be concluded that the Confrontation Clause was meant to constitutionalize a barrier against flagrant abuses, trials by anonymous accusers, and absentee witnesses"); Dutton v. Evans, 400 U.S., at 94, 91 S.Ct., at 222 (Harlan, J., concurring in result) (the "paradigmatic evil the Confrontation Clause was aimed at" was "trial by affidavit").
There appears to be little if any indication in the historical record that the exceptions to the hearsay rule were understood to be limited by the simultaneously evolving common-law right of confrontation. The Court has never explored the historical evidence on this point. As a matter of plain language, however, it is difficult to see how or why the Clause should apply to hearsay evidence as a general proposition. As Justice Harlan observed:
"If one were to translate the Confrontation Clause into language in more common use today, it would read: 'In all criminal prosecutions, the accused shall enjoy the right to be present and to cross-examine the witnesses against him.' Nothing in this language or in its 18th-century equivalent would connote a purpose to control the scope of the rules of evidence. The language is particularly ill-chosen if what was intended was a prohibition on the use of any hearsay. . . ." Id., 400 U.S., at 95, 91 S.Ct., at 222-223 (opinion concurring in result).
The standards that the Court has developed to implement its assumption that the Confrontation Clause limits admission of hearsay evidence have no basis in the text of the Sixth Amendment. Ever since Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), the Court has interpreted the Clause to mean that hearsay may be admitted only under a "firmly rooted" exception, id., at 66, 100 S.Ct., at 2539, or if it otherwise bears "particularized guarantees of trustworthiness," ibid. See, e.g., Idaho v. Wright, 497 U.S., at ----, 110 S.Ct., at 3141; Bourjaily v. United States, 483 U.S. 171, 183, 107 S.Ct. 2775, 2782-2783, 97 L.Ed.2d 144 (1987). This analysis implies that the Confrontation Clause bars only unreliable hearsay. Although the historical concern with trial by affidavit and anonymous accusers does reflect concern with the reliability of the evidence against a defendant, the Clause makes no distinction based on the reliability of the evidence presented. Nor does it seem likely that the drafters of the Sixth Amendment intended to permit a defendant to be tried on the basis of ex parte affidavits found to be reliable. Cf. U.S.C.onst., Art. III, § 3 ("No person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court"). Reliability is more properly a due process concern. There is no reason to strain the text of the Confrontation Clause to provide criminal defendants with a protection that due process already provides them.
The United States, as amicus curiae, has suggested that the Confrontation Clause should apply only to those persons who provide in-court testimony or the functional equivalent, such as affidavits, depositions, or confessions that are made in contemplation of legal proceedings. This interpretation is in some ways more consistent with the text and history of the Clause than our current jurisprudence, and it is largely consistent with our cases. If not carefully formulated, however, this approach might be difficult to apply, and might develop in a manner not entirely consistent with the crucial "witnesses against him" phrase.
In this case, for example, the victim's statements to the investigating police officer might be considered the functional equivalent of in-court testimony because the statements arguably were made in contemplation of legal proceedings. Attempts to draw a line between statements made in contemplation of legal proceedings and those not so made would entangle the courts in a multitude of difficulties. Few types of statements could be categorically characterized as within or without the reach of a defendant's confrontation rights. Not even statements made to the police or government officials could be deemed automatically subject to the right of confrontation (imagine a victim who blurts out an accusation to a passing police officer, or the unsuspecting social-services worker who is told of possible child abuse). It is also not clear under the United States' approach whether the declarant or the listener (or both) must be contemplating legal proceedings. The United States devotes little attention to the application of its proposed standard in this case.
Thus, we are faced with a situation in which the text of the Sixth Amendment supports the Wigmore-Harlan view but history and our earlier cases point away from that strictest reading of the text. Despite this tension, I believe it is possible to interpret the Confrontation Clause along the lines suggested by the United States in a manner that is faithful to both the provision's text and history. One possible formulation is as follows: The federal constitutional right of confrontation extends to any witness who actually testifies at trial, but the Confrontation Clause is implicated by extrajudicial statements only insofar as they are contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions. It was this discrete category of testimonial materials that was historically abused by prosecutors as a means of depriving criminal defendants of the benefit of the adversary process, see, e.g., Mattox v. United States, 156 U.S. 237, 242-243, 15 S.Ct. 337, 239-240, 39 L.Ed. 409 (1895), and under this approach, the Confrontation Clause would not be construed to extend beyond the historical evil to which it was directed.
Such an approach would be consistent with the vast majority of our cases, since virtually all of them decided before Ohio v. Roberts involved prior testimony or confessions, exactly the type of formalized testimonial evidence that lies at the core of the Confrontation Clause's concern. This narrower reading of the Confrontation Clause would greatly simplify the inquiry in the hearsay context. Furthermore, this interpretation would avoid the problem posed by the Court's current focus on hearsay exceptions that are "firmly rooted" in the common law. See ante, at 355-356, n. 8. The Court has never explained the Confrontation Clause implications of a State's decision to adopt an exception not recognized at common law or one not recognized by a majority of the States. Our current jurisprudence suggests that, in order to satisfy the Sixth Amendment, the State would have to establish in each individual case that hearsay admitted pursuant to the newly created exception bears "particularized guarantees of trustworthiness," and would have to continue doing so until the exception became "firmly rooted" in the common law, if that is even possible under the Court's standard. This result is difficult to square with the Clause itself. Neither the language of the Clause nor the historical evidence appears to support the notion that the Confrontation Clause was intended to constitutionalize the hearsay rule and its exceptions. Although the Court repeatedly has disavowed any intent to cause that result, see, e.g., ante, at 352; Idaho v. Wright, 497 U.S., at ----, 110 S.Ct., at 3141-3142; United States v. Inadi, 475 U.S. 387, 393, n. 5, 106 S.Ct. 1121, 1125, n. 5, 89 L.Ed.2d 390 (1986); Dutton v. Evans, 400 U.S., at 86, 91 S.Ct., at 218; California v. Green, 399 U.S., at 155, 90 S.Ct., at 1933-1934, I fear that our decisions have edged ever further in that direction.
For the foregoing reasons, I respectfully suggest that, in an appropriate case, we reconsider how the phrase "witness against" in the Confrontation Clause pertains to the admission of hearsay. I join the Court's opinion except for its discussion of the narrow reading of this phrase proposed by the United States.

## Notes

* ↑ The only recent decision to address this question explicitly was Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), in which the Court simply stated that "[t]he historical evidence leaves little doubt, however, that the Clause was intended to exclude some hearsay." Id., at 63, 100 S.Ct., at 2537 (citing California v. Green, 399 U.S. 149, 156-157, 90 S.Ct. 1930, 1934-1935, 26 L.Ed.2d 489 (1970)). The cited passage in Green simply reiterates the previously noted point that the right of confrontation evolved as a response to the problem of trial by affidavit. Thus, the statement in Roberts that "the Clause was intended to exclude some hearsay" is correct as far as it goes (affidavits and depositions are hearsay), but the opinion should not be read as having established that the drafters intended the Clause to encompass all hearsay, or even hearsay in general.
* ↑ See, e.g., Reynolds v. United States, 98 U.S. 145, 158-161, 25 L.Ed. 244 (1879) (testimony at prior trial); Mattox v. United States, 156 U.S. 237, 240-244, 15 S.Ct. 337, 338-340, 39 L.Ed. 409 (1895) (same); Motes v. United States, 178 U.S. 458, 471-474, 20 S.Ct. 993, 998-999, 44 L.Ed. 1150 (1900) (testimony at "preliminary trial"); Pointer v. Texas, 380 U.S. 400, 406-408, 85 S.Ct. 1065, 1069-1070, 13 L.Ed.2d 923 (1965) (preliminary hearing testimony); Douglas v. Alabama, 380 U.S. 415, 418-420, 85 S.Ct. 1074, 1076-1077, 13 L.Ed.2d 934 (1965) (codefendant's confession); Brookhart v. Janis, 384 U.S. 1, 4, 86 S.Ct. 1245, 1246-1247, 16 L.Ed.2d 314 (1966) (same); Barber v. Page, 390 U.S. 719, 722-725, 88 S.Ct. 1318, 1320-1322, 20 L.Ed.2d 255 (1968) (preliminary hearing testimony); Bruton v. United States, 391 U.S. 123, 126-128, and n. 3, 88 S.Ct. 1620, 1622-1624, and n. 3, 20 L.Ed.2d 476 (1968) (codefendant's confession); Roberts v. Russell, 392 U.S. 293, 294-295, 88 S.Ct. 1921, 1922-1923, 20 L.Ed.2d 1100 (1968) (per curiam) (same); Berger v. California, 393 U.S. 314, 314-315, 89 S.Ct. 540, 541, 21 L.Ed.2d 508 (1969) (per curiam) (preliminary hearing testimony); California v. Green, 399 U.S., at 152, 90 S.Ct., at 1932 (preliminary hearing testimony and statement to police); Mancusi v. Stubbs, 408 U.S. 204, 213-216, 92 S.Ct. 2308, 2313-2315, 33 L.Ed.2d 293 (1972) (prior testimony).
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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