Revisiting the Fictional Originalism in Crawford's Cross-Examination Rule: A Reply to Mr. Kry

This article replies to Robert Kry's response (Kry, "Confrontation under the Marian Statutes: A Response to Professor Davies," 72 Brooklyn L. Rev. 493-555 (2007)) to one of my previous criticisms of Justice Scalia's claims about the original Confrontation Clause in Crawford v. Washington (2004). (Davies, "What did the Framers Know, and When Did They Know It? Fictional Originalism in Crawford v. Washington," 71 Brooklyn L. Rev. 105-217 (2005)). Specifically, I reply to Kry's defense of Justice Scalia's claim regarding a framing-era cross-examination rule applicable to the admission of Marian witness examinations. I begin by arguing that originalists who claim a heightened normative status for original meaning should be expected to meet a rigorous standard of historical evidence. I then point out that Kry defends a substantially different and weaker historical claim than Justice Scalia asserted in Crawford. Justice Scalia asserted that a Marian cross-examination rule had become a settled rule of common law, but Kry argues only that a controversy regarding cross-examination had emerged in London Marian practice by the time the Confrontation Clause was drafted in 1789. I note that Kry's arguments for the legitimacy of Crawford's historical claim depend heavily on post-framing interpretations of earlier cases, rather than on pre-framing statements that were actually available to the American Framers. Thus, although Kry characterizes our disagreements as largely a matter of timing, I suggest it is more a matter of time travel. I then systematically work through the pre-framing historical sources that Kry invokes, and argue that they fall short of justifying the historical claim of a Marian cross-examination rule that Justice Scalia asserted in Crawford. In addition to reiterating that no such rule appeared in any of the legal authorities available to the Framers, I point out that some pre-framing sources juxtaposed the admissibility of Marian witness examinations of unavailable witnesses to the cross-examination rule applied to the admissibility of depositions in civil lawsuits. I also present additional information showing that the 1787, 1789, and 1791 cases on which Justice Scalia relied in Crawford were published too late to have influenced the Framers and call attention to Kry's concession that the Justices of the Court of King's Bench did not state a cross-examination rule for Marian examinations in rulings as late as 1790 and 1793. I also review Kry's post-framing American evidence and note that the three earliest post-framing state cases that Kry cites not only fall short of showing a framing-era cross-examination rule but actually suggest that Americans still had not become aware of the English controversy that Kry describes. I also note that Kry has not undertaken to respond to the criticism in my 2005 article of Crawford's other originalist claim to the effect that the Framers intended for the confrontation right to apply only to testimonial hearsay but not to nontestimonial hearsay. As I document more fully in a forthcoming article, the Framers expected that virtually all hearsay would be banned from criminal trials. (Davies, "Not the Framers' Design," 15 Brooklyn J. L. & Pol'y 349-469 (2007).)