'Returning' the Confrontation Clause to 'Solid Ground': Can Williams v. Illinois Garner a Fifth Vote?

"Because Crawford and Davis concerned typical witnesses, the Court should have done the sensible thing and limited its holding to witnesses as so defined. Indeed, as Justice Thomas warned in his opinion in Davis, the Court’s approach has become ‘disconnected from history and unnecessary to prevent abuse.’ 547 U.S. at 838, 126 S.Ct. 2266. The Court’s reliance on the word ‘testimonial’ is of little help, of course, for that word does not appear in the text of the Clause.” Justice Kennedy, with whom the Chief Justice, Justice Breyer, and Justice Alito join, dissenting in Melendez-Diaz v. Massachusetts, – U.S – , 129 S.Ct. 2527, 2543-44, 174 L.Ed.2d 314 (2009).“Seven years after its initiation, it bears remembering that the Crawford [testimonial/nontestimonial] approach was not preordained. This Court’s missteps have produced an interpretation of the word ‘witness’ at odds with its meaning elsewhere in the constitution, including elsewhere in the Sixth Amendment, see Amar, Sixth Amendment First Principles, 84 Geo. L.J. 641, 647, 691-696 (1996), and at odds with the sound administration of justice. It is time to return to solid ground.” Justice Kennedy, with whom the Chief Justice, Justice Breyer and Justice Alito join, dissenting in Bullcoming v. New Mexico, – U.S. – , 131 S.Ct. 2705, 2723, 180 L.Ed.2d 610 (2011).As is hopefully clear to every reasonable person at all familiar with current confrontation clause jurisprudence, Crawford and its now many progeny collectively comprise an incredibly complex, unworkable, and totally theoretically unsound approach to the Sixth Amendment provision that “[i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with witnesses against him.” Four Justices of the United States Supreme Court have now called for a “return to solid ground.” Returning the confrontation clause to solid ground will require a recognition that the Crawford and progeny testimonial approach effectuated by the primary purpose test simply fails to properly reflect the core meaning of the confrontation clause, assuming there is a core meaning and it is worth reflecting. According to Justice Scalia in Crawford, the core meaning of the confrontation clause is abhorrence of the civil law mode of criminal procedure’s use of uncross-examined ex parte examinations of nongovernment declarants as evidence against the accused. In place of the testimonial approach effectuated by the primary purpose test, this article suggests that the confrontation clause core meaning is best effectuated by excluding admissibility of solely government “elicited” statements of nongovernment declarants.Returning the confrontation clause to solid ground also requires a return to recognizing that the criminal defendant should not be faced with hearsay statements, absent the opportunity for cross-examination, that have not be subjected to the crucible of indicia of reliability testing as enunciated and developed by the United States Supreme Court in Ohio v. Roberts and its progeny. Forensic experts’ records, along with other hearsay statements, should be admitted against the criminal defendant, absent cross-examination, only if the indicia of reliability substitute for cross-examination standard is satisfied.Implementing the core meaning value of the confrontation clause as stated in Crawford in the narrow manner suggested above requires abandonment of the terms “testimonial” as well as “primary purpose” thus effectively overruling both Davis and Bryant. Reintroducing the Roberts indicia of reliability prong of the confrontation clause requires overruling both Melendez-Diaz and Bullcoming as well. In its place this article argues that the “elicited” hearsay statement from a nongovernment declarant implementation of the confrontation clause’s core meaning recognizes that introduction of such a noncross-examined statement constitutes structural error – error that “seriously affects the fairness, integrity or public reputation of judicial proceedings” – regardless, as correctly pointed out by Justice Scalia dissenting in Bryant, of the reliability or lack of reliability of the hearsay statement itself. In addition, reintroduction of the indicia of reliability test of Roberts once again recognizes the confrontation clause right of the criminal defendant not to be convicted on the basis of unreliable uncross-examined hearsay statements.As illustrated by the hypothetical contained in this article, current confrontation clause doctrine is in utter shambles. Four Justices of the United States Supreme Court have declared the current confrontation clause doctrine “at odds with sound administration of justice” and have called for a “return to solid ground”. The dual approach of “elicited statement” and “indicia of reliability” accomplishes the task and does so without abandoning Crawford’s recognition of the core meaning of the confrontation clause. This article asserts that maintaining the Crawford’s core meaning, whether meritorious or not, will very much further the effort to obtain a fifth vote to abandon the testimonial approach effectuated by the primary purpose test of Crawford and its progeny.