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November 15, 2014

Examining Crawford after a decade

First Impressions, the online companion to the Michigan Law Review, has this new on-line symposium titled "Crawford v. Washington: A Ten Year Retrospective."  Here is how the editors introduce the pieces and links thereto:

No one disputes the significance of Crawford v. Washington, 541 U.S. 36 (2004), which fundamentally transformed Confrontation Clause jurisprudence. But ten years after the Supreme Court's landmark decision, scholars, practitioners, and judges still debate its logic and its consequences. This Symposium continues that debate, featuring essays written by Professors Richard D. Friedman and Jeffrey L. Fisher, who advocated in Crawford itself for the Supreme Court to adopt the "testimonial" approach to the Confrontation Clause; Professor George Fisher, one of the nation's premier scholars of criminal law and evidence; and Professor Deborah Tuerkheimer, who has written extensively on the Crawford regime's effect on domestic violence prosecutions.

The Symposium consists of five essays. Professors George Fisher and Tuerkheimer both wrote longer essays, while Professors Friedman and Jeff Fisher each wrote a shorter piece and collaborated on a joint response to George Fisher's essay.

We hope this Symposium fosters further debate about the merits of the Crawford regime and inspires the practitioners, scholars, and judges who will shape the contours of the Confrontation Clause over the next ten years. 

November 15, 2014 at 05:38 PM | Permalink


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The fundamental problem with Crawfrod is this: in hindsight it is obvious that while Justice Scalia had the votes to overturn Ohio vs Roberts he didn't have the votes for its substitute. That is to say that seven justices voted for Crawford but they were all over the map as to why. So how now brown now? Some have argued that the result is to go back to Roberts because as flawed as Roberts was--and it was seriously flawed--it is better than this mess. That clearly is the view of Kennedy and his proteges in the academia. Sherry Colb recently penned a hatchet job on Crawford and predicted that SCOTUS would use Ohio vs Clark to go back to Ohio vs Roberts. I certainly hope not.

My own view is that as messy as Crawford is--and let's be clear it is primarily messy because of Justice Thomas's views--that it still remains better than Ohio vs Roberts. One thing I find amusing and bemusing about the attack on Crawford is that it is often lead by women's right activists. Yet the funny thing about that attack is that Crawford has always had Justice Ginsburg in its camp and arguably she even takes a more expansive view of Crawford than Scalia! See her concurrence in Giles, for example. And one would never confuse Justice Ginsburg for a coddler of wife beaters.

My own hope--a vain hope--is that Justice Thomas will get his head out of his ass, abandon his formalistic view of testimonial, and thereby put the beast to rest once and for all. But in the absence of a change of mind in that regard I fear it will be more of muddling through.

Posted by: Daniel | Nov 16, 2014 12:49:15 AM

It's been awhile since I could justify reading a full symposium of scholarly articles for fun, but I'll try and check these out. In my view, Crawford has been far more successful than its predecessor in increasing predictability and avoiding placing a thumb on the scale in favor of one side or the other.

I agree that Justice Thomas causes the doctrine to be up in the air, but it's fixable problem by carefully selecting cases that involve sworn statements. Then you can clarify the doctrine through five votes.

Regarding the idea of it protecting domestic abusers. First off, the biggest issues with Crawford these days are related to the convenience of forensic scientists, so usually DNA or possession cases, not domestic abuse cases. Second, It's hard to imagine a world where an upset, angry spouse or girlfriend actually has the indicia of reliability to make the hearsay reliable. It's only by placing a thumb on the scale in favor of erring on the side of convictions that such testimony is allowed in. It seems strange that anyone could openly advocate for that but that's essentially what they're asking for.

Posted by: Erik M | Nov 16, 2014 1:53:58 PM

As a long-term appellate court staff attorney, I would nominate Crawford for worst decision ever. Even SCOTUS doesn't know what it means.

Posted by: Mr. Grumpy | Nov 16, 2014 6:42:34 PM

Daniel said: "It's hard to imagine a world where an upset, angry spouse or girlfriend actually has the indicia of reliability to make the hearsay reliable." What? Are you serious? The statements of that crying woman with a fractured eye orbital aren't reliable enough for you? You do not live in my world.

Posted by: Mr. Grumpy | Nov 16, 2014 6:57:29 PM

Just for clarity's sake it wasn't me who wrote the sentence Mr. Grumpy quotes but the poster Eric M. In any event, if the the criteria for a bad decision is whether future courts can understand what it means there are most certainly worse decisions than Crawford.

As for the debate over reliability, one of the things Crawford stands for is that the Confrontation right and reliability have nothing to do with one another because Confrontation is not about evidence but procedure.

Posted by: Daniel | Nov 16, 2014 7:49:49 PM

Thomas isn't going to budge from his wooden formulation regarding when a hearsay declarant is a "witness" within the meaning of the Confrontation Clause.

The Williams dissenters together with Sotomayor and, possibly, Kagan, might, however, be willing to return to a reliability-based test, as a better alternative than an inflexible testimonial formulation.

In the end, I simply see the Williams dissenters getting Sotomayor or Kagan (neither of whom were on the Court when Crawford was decided) to sign on to a much narrower conception of the confrontation right. Perhaps, in exchange for more protection (for a criminal defendant) under Due Process.

The upcoming Ohio v. Clark case, No. 13-1352, will provide the Court with an opportunity to clean up the mess created by the overly broad Scalia/Ginsburg conception of when a hearsay declarant is a Confrontation Clause "witness."

Take a look at Professor Friedman's http://confrontationright.blogspot.com if you are interested in reading more commentary on the Clark case.

Posted by: pvine | Nov 17, 2014 12:58:43 AM

Mr. Grumpy, it was me, not him.

For starters, you added corroboration that was not found in my post. My post was referring to statements alone. That being said, the justifications for hearsay exceptions have always been content neutral. By that I mean they're seen to be more reliable (or, more accurately, not prone to fabrication) regardless of whether there's any corroborating evidence. Business Records aren't prepared for trial, they're prepared so the business can function effectively. There's no motive to falsify them. Excited Utterances are done spontaneously when there's no opportunity to calculate a plan on how to fabricate them (certainly, there's a risk of lower accuracy due to the shock that just happened but that's a separate issue). Statements for purposes of medical diagnosis are similar to business records. They are done in a context where lying would be harmful not helpful.

In the exceptions above, none of them depend on whether the statements conform to corroborating evidence (which always has a chicken or egg problem. Does the evidence corroborate the statement or was the statement made with the calculated purpose of matching the evidence?). This is simply a question hearsay exceptions don't have to worry about because they consider the reliability of a category of evidence and it is never done in a specific way.

On the other hand, a person who goes to the police to file a police report or press charges does so when their motive to lie is at its highest. Sure, the majority of cases will be truthful (I've seen enough civilian complaint criminal trials to be skeptical even of this, but I'm willing to accept that I live in a weird jurisdiction), but that just means probability of guilt not proof beyond a reasonable doubt. Even in a case of corroboration of injury, that isn't corroboration of identity of the perpetrator. And, if they had corroboration of that, why do they need his or her testimony anyway?

Posted by: Erik M | Nov 17, 2014 9:17:43 AM

Jeffrey L. Fisher was appointed counsel by the USSC in a pending confrontation case per an order today.


Posted by: Joe | Nov 17, 2014 10:11:34 AM

Here's the way I count the votes.

Scalia/Ginsburg are on the Crawford boat and full steam ahead.
Thomas is on the boat but only in a formal, wooden sense.
Sotomayor and Kagan are, broadly speaking, on the boat but aren't wedded to it.
Breyer is off the boat but is not on any boat. He doesn't know what to do.
Kennedy/Roberts/Alito are on the Roberts boat.

So the situation is very much in flux. My initial thinking was that they took Ohio v Clark to overturn it and I am still inclined that way. But the more I've thought about the more I believe that right now anything is possible.

Posted by: Daniel | Nov 17, 2014 1:36:53 PM

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