But What if the Court Reporter is Lying? The Right to Confront Hidden Declarants Found in Transcripts of Former Testimony

Prior to 2004, it was fairly simple for the prosecution in a criminal case to overcome a Confrontation Clause objection when offering hearsay evidence against the accused. Under the United States Supreme Court's then-existing Confrontation Clause jurisprudence, so long as the hearsay statement at issue fell within a "firmly rooted"3 exception to the hearsay rule or was shown by the prosecution to contain "particularized guarantees of trustworthiness," the Confrontation Clause posed no barrier to admissibility.4 But in its watershed 2004 opinion in Crawford v. Washington* the Supreme Court re-theorized the relationship between hearsay evidence and the Confrontation Clause and, in so doing, created a significant barrier to offering hearsay evidence against the accused in a criminal case. Crawford and its progeny divide hearsay into two categories: "testimonial" and "non-testimonial."6 If a statement is deemed non-testimonial, then the Confrontation Clause presents no barrier to admissibility.7 However, if the statement is testimonial, it is, as a general rule,8 inadmissible unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine her.9 Accordingly, after Crawford, where testimonial hearsay is involved, the prosecution can no longer overcome a Confrontation Clause objection by merely pointing to the fact that the statement falls within an exception to the hearsay rule, firmly rooted or otherwise. For example, Crawford and its progeny have deemed inadmissible on Confrontation Clause grounds testimonial statements falling within the scope of the hearsay exceptions for statements against interest,10 excited utterances,11 and business or public records.12 Moreover, as demonstrated by the Supreme Court's most recent Confrontation Clause decision in Melendez-Diaz v. Massachusetts,13 the Court has thus far been unmoved by arguments regarding the practical consequences of such rulings for the prosecution in terms of requiring the production of numerous individuals to appear as witnesses at trial. There is, however, one hearsay exception - former testimony - that, if applicable, satisfies the demands of the Confrontation Clause post- Crawford and thus provides a means of admitting testimonial hearsay statements.14 Under Crawford, testimonial statements are admissible if the declarant is unavailable and the accused had a prior opportunity to cross-examine her.15 Likewise, the hearsay exception for former testimony requires that the declarant be unavailable and that the party against whom the testimony is offered had a prior opportunity to develop the testimony through cross-examination or otherwise.16 Thus, because the phrase "unavailable," as used in the hearsay exception, is typically construed in the same way as it is used in Confrontation Clause jurisprudence,17 former testimony falling within the scope of the hearsay exception should automatically overcome a Confrontation Clause objection, even though the former testimony is clearly "testimonial" under Crawford.18 Yet, it is often the case that what counts as "former testimony" for both hearsay and Confrontation Clause purposes is but one layer in a hearsay "sandwich," consisting of double, triple, or even quadruple hearsay. This is because the prosecution will often attempt to prove the person's former testimony by means of a transcript produced by a court reporter (adding an additional layer of hearsay) and because the person's former testimony may have consisted of hearsay statements made by third persons (adding still another layer or more of hearsay). The right to confront the person who gave testimony in the former trial may be satisfied by demonstrating her unavailability and the accused's prior opportunity to cross-examine her. However, depending on the way in which the person's prior testimony is proven and the content of that former testimony, there may exist other, hidden declarants that the accused has a right to confront. …