The Incredible Shrinking Confrontation Clause

Sharp turns in the Supreme Court's recent Confrontation Clause jurisprudence have leftscholars reeling from conflicting emotions: exhilaration, despair, denial, and soon, perhaps, cynical acceptance. While most commentators celebrated the demise of the incoherent Ohio v. Roberts framework, their excitement largely faded as the Court's decisions in Davis v. Washington and Bryant v. Michigan revealed nascent flaws in the evolving doctrine and sharply curtailed the newly revitalized confrontation right.Recent scholarship strives to reanimate the jurisprudence by expanding the doctrinal definition of "testimonial" statements - the sole form of evidence that the Court now recognizes as implicating the Confrontation Clause. This Article targets a similar objective through a less-traveled path. It accepts the Court's focus on, and definition of, "testimonial" statements as a valid, even inevitable, jurisprudential development. This Article seeks instead to expand the reach of the confrontation right to "nontestimonial" hearsay, arguing that constitutional limits - albeit less strict ones - are also warranted for this type of evidence in light of the policies, text, and history of the Confrontation Clause. The Article then details how the Supreme Court can (consistent with the overarching historical, textual, and policy arguments noted above) integrate these limits on the admission of nontestimonial hearsay into its new jurisprudence."In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him."- United States Constitution, Sixth Amendment"I know not why . . . a man should have a constitutional claim to be confronted with the witnesses against him, if mere verbal declarations, made in his absence, may be evidence against him."- Chief Justice John Marshall1INTRODUCTIONCommentators cheered when the Supreme Court decided Crawford v. Washington2 in 2004.3 The decision finally put "some teeth in the Confrontation Clause," repudiating the wishy-washy and widely-reviled Ohio v. Roberts4 framework that governed the Court's jurisprudence over the preceding two decades.5 Adding to the excitement, the reinvigoration of the Sixth Amendment confrontation right was led by Justice Scalia playing counter-to-type and striking a resounding blow against prosecutorial power.6Crawford was a victory not just for criminal defendants, but for the Constitution as well. The Crawford Court reversed a conviction because the prosecution had introduced unconfronted, "testimonial" hearsay - the type of evidence most analogous to the sworn statements of absent witnesses that the Sixth Amendment's drafters abhorred.7 Such hearsay is inadmissible against a criminal defendant, Crawford announced, because the Sixth Amendment demands face-to-face confrontation, not the "malleable" tests of reliability set forth in Roberts.8As ambitious as the case was, Crawford only mapped out the rough contours of the long-awaited Confrontation Clause revolution, leaving a number of important questions "for another day."9 As the Supreme Court began to answer those questions in later cases, the new jurisprudence took a dramatic and surprising turn. Three years after Crawford, the Court strictly cabined the category of hearsay to which the reinvigorated confrontation right applied. Specifically, Davis v. Washington10 held that while "testimonial" hearsay was inadmissible absent confrontation, "nontestimonial" hearsay - a broad category of admissible hearsay - was "not subject to the Confrontation Clause" at all.11 The next blow to the celebrated reinvigoration of the Confrontation Clause came in the 2011 case of Michigan v. Bryant.12 In Bryant, a new majority of the Supreme Court seized the evolving jurisprudence from Justice Scalia's guiding hand and, while claiming fidelity to Crawford, constricted the definition of "testimonial" statements to its minimalist core: statements "procured with a primary purpose of creating an out-of-court substitute for trial testimony. …