Written by Adrienne Chin-Perez, third year law student at The Ohio State University: Moritz College of Law
First, I am happy that I took evidence last semester and before Williams v. Illinois, 132 S.Ct. 2221 (2012) was decided. Hearsay, the Confrontation Clause, and their interaction with expert testimony are confusing enough, but sprinkle in seemingly contradictory decisions, and they become a law student’s worst nightmares.
Second, I’m becoming increasingly uncomfortable with the apparent shift in policy reasoning for the Confrontation Clause for testimonial hearsay issues. In Crawford v. Washington, 541 U.S. 36, 38 (2004), the Court grounded its holding in the Sixth Amendment’s guarantee that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI. The Court continues to stress the importance of the Sixth Amendment and right to confront witnesses. The Court goes so far as to describe the Confrontation Clause as a “bedrock procedural guarantee.” Crawford, 541 U.S. at 42. The Court also makes it clear that it is not enough for testimonial hearsay to be reliable.
Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment’s protection to the vagaries of the rules of evidence, much less to amorphous notions of ‘reliability.’ Certainly none of the authorities discussed above acknowledges any general reliability exception to the common-law rule. Admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation.
Id. at 61.
Further, “[d]ispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes.” Id. at 62. The Court’s conclusion that reliability does not necessarily meet the rigorous standards of the Confrontation Clause establishes a strong constitutional underpinning for the Confrontation Clause as applied to testimonial hearsay.
That strong underpinning seems to fade by the time Williams v. Illinois, 132 S.Ct. 2221 (2012), is decided. In Williams, the Court decided whether the Confrontation Clause applied to Federal Rule of Evidence 703 exception for expert witnesses, where expert witnesses can base their testimony on hearsay evidence. In Williams, a DNA expert for the state testified using a report done by another company and person, Cellmark. The Court held that the report was admissible under Rule 703. Instead of somehow rationalizing this decision with the constitutional importance of the Confrontation Clause as the Court did in Crawford, the Court focuses on the reliability of the evidence.
My first qualm with the “new and improved” Crawford is that the Court revamps the definition of “testimonial.” The Court makes a lacking-emergency argument to distinguish DNA testing where tests are run when a suspect is already apprehended, which is preparation for trial, and tests run before a suspect is apprehended, which are simply heroic efforts to get a rapist off the streets. Williams, 132 S.Ct. at 2243. It strikes me as odd that when a criminal is on the loose, DNA technicians are not interested in convicting the criminal, but rather they are only interested in apprehending the criminal. Shouldn’t a reasonable DNA technician believe that the DNA evidence will be used at trial and not just used to apprehend the suspect?
The Court also reasons that because:
. . . no one at Cellmark could have possibly known that the profile that it produced would turn out to inculpate petitioner—or for that matter, anyone else whose DNA profile was in a law enforcement database[,] . . . there was no ‘prospect of fabrication’ and no incentive to produce anything other than a scientifically sound and reliable profile.
Id. at 2243–44.
The Court implies that the major obstacles to the Confrontation Clause are the “prospect of fabrication” and the lack of reliability. Although the policy reason for hearsay exceptions is grounded in an extra indicium of reliability, the policy reason for the Confrontation Clause is not. As the Court said in Crawford, the Confrontation Clause is grounded in the Sixth Amendment and a constitutional guarantee. The Court now shifts away from the Confrontation Clause as a constitutional guarantee, and shifts towards the Confrontation Clause as a guarantee that evidence is reliable.
This may not seem like a substantial shift but it positions the Confrontation Clause in a different light. It is much easier to ignore a policy concern when it centers on reliability than a policy concern that centers on a constitutional guarantee. Few courts would say “The evidence is admissible because it is very probative and only infringes on a constitutional right a little.” However, many more courts would say “The evidence is admissible because it is very probative and the evidence is not totally unreliable.” This shift is an important one because it could slowly erode the Confrontation Clause as it applies to testimonial hearsay.
A similar, yet more drastic, shift has occurred with the exclusionary rule. Initially, the Court found that “. . . in extending the substantive protections of due process to all constitutionally unreasonable searches—state or federal—it was logically and constitutionally necessary that the exclusion doctrine—an essential part of the right to privacy—be also insisted upon as an essential ingredient of the right newly recognized by the Wolf case [the case that incorporated the Fourth Amendment].” Mapp v. Ohio, 367 U.S. 643, 655–56 (1961) (emphasis added). However, by the time Herring v. United States was decided, “. . . the benefits of deterrence must outweigh the costs” for the exclusionary rule to apply. 555 U.S. 135, 141 (2009) (citation omitted). The Court held that the government misconduct must rise to “systemic error or reckless disregard of constitutional requirements” for the exclusionary rule to apply. Id. at 147. This drastic shift from “constitutionally necessary” to a mere balancing test between the costs and benefits of exclusion significantly marginalizes the exclusionary rule. The shift from Crawford to Williams has also marginalized the Confrontation Clause as it applies to testimonial hearsay and, without fervent advocacy, the Confrontation Clause could eventually become as nominal as the exclusionary rule has become.
On its face, Williams may seem like a limited decision, but the heart of the opinion is much more malignant. While allowing DNA experts to testify about DNA tests run by other technicians seems innocuous, the Court’s reasoning has begun to eviscerate the rights protected by the Confrontation Clause and has created an even more complicated body of cases.
Written by Adrienne Chin-Perez
Adrienne Chin-Perez is a third year law student at The Ohio State University: Moritz College of Law and is a visiting student at Lewis & Clark Law School. She has a profound interest in criminal law and is a current law clerk at the Oregon Federal Public Defender. She is hoping to work in criminal law after graduation.