Constitutional Evasion and the Confrontation Puzzle

One of the most notable developments in contemporary constitutional law is the breakdown of jurisprudence interpreting the Sixth Amendment’s Confrontation Clause following the U.S. Supreme Court’s 2004 decision in Crawford v. Washington. There, the Court promised doctrine that faithfully applied the Clause’s original meaning, was simple to administer, and protected criminal defendants against convictions secured through suspect evidence. PostCrawford case law has not delivered on these promises. This Article argues that Crawford’s failure reflects an unsuccessful attempt to regulate evasion of the Confrontation Clause. Though justified by the Court on originalist grounds, the rule of Crawford, holding that “testimonial” evidence triggers a right to confront the responsible “witness,” is best understood as an attempt to regulate governmental evasion of the basic Sixth Amendment right to confront witnesses who give live testimony in legal proceedings. The need for doctrine that performs this function results from the transformation in evidence between the framing and present day. The Crawford Court, however, did not acknowledge the need to regulate evasion of the basic confrontation right, nor did it grapple with important policy questions a legal policymaker regulating evasion of the law must address. This account: (1) suggests a reorientation of confrontation doctrine that would permit the Court to overcome the uncertainty that plagues post-Crawford jurisprudence; (2) suggests a decision tree for courts considering whether and how to regulate seemingly evasive activities; and (3) contributes new data to the long-running debate between “pragmatist” and “doctrinalist” scholars over the utility of identifying a separate category of doctrine that implements constitu© 2015, David L. Noll. All rights reserved. * Assistant Professor of Law, Rutgers Law School. Thanks to participants at Loyola University-Chicago’s Fifth Annual Constitutional Law Colloquium, a Rutgers Faculty Colloquium, and a Rutgers Junior Faculty Workshop for engaging discussion and criticism; to Bernard Bell, Jessica A. Clarke, Joe Doll, Bethany Davis Noll, Brannon P. Denning, George Fisher, Michael B. Kent, Jr., John Leubsdorf, Anthony O’Rourke, George C. Thomas III, Sabrina Safrin, and Don Rehkopf, Jr. for written comments on prior drafts; to Martin Kurzweil and James Nelson for help framing the project at its earliest stages; and to Don Ayer, Sam Estreicher, and Meir Feder for introducing me to the problems of contemporary Confrontation Clause jurisprudence. Lee Sims, Stephanie Lopez, Nick Rodriguez, and Joshua Smith provided invaluable research assistance. I gratefully acknowledge financial support of the William S. Powers Research Fund. A note on the text: when quoting sixteenth and seventeenth century sources, I have followed the convention of modernizing spelling and punctuation without indication in the text. Cf. John H. Langbein, The Historical Foundations of the Law of Evidence: A View from the Ryder Sources, 96 COLUM. L. REV. 1168 n.* (1996). Titles of historical sources are reproduced in their original form. 1900 Boston College Law Review [Vol. 56:1899 tional norms as opposed to elaborating the Constitution’s textual and historical