Confrontation as Constitutional Criminal Procedure: Crawford 's Birth Did Not Require that Roberts Had to Die

This essay is about the conflict between the Confrontation Clause in Ohio v. Roberts (1980), which provided the basis for Confrontation Clause analysis for over two decades, and the Clause as seen in the 2004 decision, Crawford v. Washington. Presented directly, the issue is whether as a matter of constitutional criminal procedure Roberts "had to die" when Crawford was "born." My conclusion is that Roberts was in very good company when one looks at the general range of modern constitutional criminal procedure doctrines derived from the Fourth, Fifth, and Sixth Amendments. In particular, I believe that Idaho v. Wright (1990), which is not reviled but rested squarely on Roberts, contains an important concept worthy of continued life - unreliable and accusatory hearsay should be required to pass at least a minimal screening process under the Confrontation Clause of the Sixth Amendment before it could be used against a criminal defendant without confrontation. At one point, I hoped that Roberts would be allowed to continue to provide supplementary protection for nontestimonial hearsay that was facially problematic. However, while the issue of Roberts' official death might have at one point been debateable, the Supreme Court officially declared its demise in Whorton v. Bockting (2007) and that the Confrontation Clause of the Sixth Amendment has no role in excluding unreliable hearsay that is nontestimonial. After the strong suggestion in Davis of Roberts' demise, I did not entirely understand the apparent happiness of liberal leaning academics. I believe Roberts' death should be mourned rather than celebrated. The end of such supplemental protection under the federal Constitution is unfortunate, and it makes this essay in many ways an "academic" exercise, which it presumably will be during my lifetime with regard to the federal Constitution. I nevertheless commend this essay and what is now a thought experiment to readers as part of Roberts' decent burial. Moreover, the arguments presented here are not irrelevant. State supreme courts have the power to preserve Roberts-type protection under their states' confrontation clauses, which need not move in lockstep with the United States Supreme Court, particularly when that Court goes beyond the clarity of historical sources and ignores important values. Additionally, now that the Supreme Court has stated that unreliability is not a direct concern of the Sixth Amendment's Confrontation Clause, as matters of policy, the legislatures can and should structure statutory protections to guard against unreliable nontestimonial hearsay. Although I do not believe Crawford is correct in its precise formulation ("accusatorial" is more historically accurate and produces superior results than "testimonial"), its general approach remedies an inadequacy in constitutional protection of the core confrontation right. Accordingly, I do not disagree with the proposition that Crawford is roughly right, but that concession does not mean that Roberts was all wrong in providing lesser, supplementary protection outside the core concerns embodied in the testimonial concept. Given the obvious and widely recognized inadequacy of Roberts' protection for the confrontation right, one might wonder why - or whether - the decision would have been worth preserving. I was in fact most concerned with preserving Wright, which has not been officially interred but likely has no future under Crawford. In Wright, the court excluded highly problematic statements by a child that were accusatory and secured by leading questions asked by a pediatrician rather than a police officer as violating the Confrontation Clause under Roberts. Situations analogous to that in Wright, whether or not declared to involve testimonial statements, should but are not likely to be scrutinized under the Confrontation Clause. Hopefully, such scrutiny (or some scrutiny) will continue in some courts and through other legal mechanisms.