Confronting the Supreme Court’s Confusing Confrontation Clause Cases

With all of the hullabaloo surrounding federal district court judges blocking President Donald Trump’s executive actions, the statements two Supreme Court Justices made (in a case that the full Court declined to hear) that could portend a sea change in the Court’s Confrontation Clause cases went largely unnoticed. 

But they shouldn’t, because Justices Samuel Alito and Neil Gorsuch are calling for a wholesale reevaluation of the Confrontation Clause and the Court’s resulting doctrines that began taking shape more than two decades ago.

Back then, Justice Antonin Scalia himself ushered in a comprehensive change in how courts consider whether a criminal defendant’s Sixth Amendment right to confront his accusers has been violated.

In Crawford v. Washington (2004), writing for the majority, Scalia rejected the Supreme Court’s previous approach from Ohio v. Roberts (1980) that allowed a court to admit an out-of-court statement against a defendant if a judge determined that it fell within a “firmly rooted hearsay exception” or that it contained “particularized guarantees of trustworthiness.” 

Scalia explained that while “the Clause’s ultimate goal is to ensure reliability of evidence, . . . it is a procedural rather than a substantive guarantee.” At bottom, Scalia said, it “commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.”

Simple enough. But Scalia didn’t leave it there.

He continued by explaining that the Sixth Amendment’s “constitutional text, like the history underlying the common-law right of confrontation, . . . reflects an especially acute concern with a specific type of out-of-court statement”—those he deemed “testimonial.”

But what qualifies as a testimonial statement? And how should a court decide? In Crawford, Scalia kicked the can down the road. He said, “We leave for another day any effort to spell out a comprehensive definition of ‘testimonial.’”

That decision has wreaked havoc.

While Scalia laid out some guideposts of what would qualify as an out-of-court “testimonial” statement (“Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations”), the Supreme Court, lower federal courts, and state courts have all had difficulty distinguishing what other types of statements might be testimonial—and thus subject to the Confrontation Clause’s guarantees—versus what statements are not testimonial and not subject to the Confrontation Clause’s guarantees.

Justice Clarence Thomas has staked out the view that “the Confrontation Clause is implicated by extrajudicial statements only insofar as they are contained in formalized testimonial materials such as affidavits, depositions, prior testimony, or confessions.” Other than those types of formal statements, the Confrontation Clause, in his view, isn’t implicated (unless less formalized means are simply used to skirt the use of the formalized statements).

This brings us to the primary-purpose test and the case today’s Supreme Court declined to hear.

After Justice Scalia wrote the Crawford opinion, the Court adopted the “primary-purpose test” to determine whether someone created an out-of-court statement with the primary purpose to have it used later in court. If so, that statement is testimonial, and a defendant has the right to confront and cross-examine, in court, the person who made it.

Justices Alito and Gorsuch agreed with the Court’s decision not to hear Cid Franklin’s case, where he complained that he didn’t have an opportunity to confront and cross-examine the author of a pre-arraignment bail report that the State of New York later introduced at trial as evidence of his guilt. But both raised alarms about the Crawford Confrontation Clause regime and the incoherence and unworkability of the primary-purpose test.

Justice Alito said that in “an appropriate case [the Court] should reconsider the interpretation of the Confrontation Clause that the Court adopted in Crawford v. Washington.” Alito noted that “[h]istorical research now calls into question Crawford’s understanding of the relevant common law rules at the time of the adoption of the Sixth Amendment,” and that Crawford’s rule “has not produced predictable and consistent results.”

Moreover, Alito said that “[d]espite repeated attempts to explain what Crawford meant by ‘testimonial statements,’ our Confrontation Clause jurisprudence continues to confound courts, attorneys, and commentators.” As a result, he argued, the “current state of our Confrontation Clause jurisprudence is unstable and badly in need of repair.”

Justice Gorsuch largely agreed.

While Gorsuch, in a footnote, noted sympathy with Alito’s call to reevaluate Crawford in light of recent historical research and to potentially broaden its protections accordingly, he took particular aim at the Court’s development of the primary-purpose test. He said, “Start with this one: Where does it come from? The test appears nowhere in the text of the Sixth Amendment, nor have our decisions sought to justify it by reference to the Amendment’s original meaning and the historic practices that informed it.” Then, quoting Justice Elena Kagan from an earlier case, he said, “Really, where the primary-purpose test ‘comes from is anyone’s guess.’”

More troublingly, he observed that the Court has never articulated a clear version of the test and has, in fact, “offered a number of ‘varied’ and seemingly inconsistent ‘formulations.’” As a result, the primary-purpose test “has caused considerable confusion.”

Gorsuch said that the Court should, as it has in other areas, eschew “ambitious, abstract, and ahistorical tests in favor of ones grounded in the constitutional text and the common law that informed it.”

We all know that the Sixth Amendment guarantees a criminal defendant the right “to be confronted with the witnesses against him.” But what that right means in practice—and how protective it proves to be—will depend on the path the Court continues to chart in the wake of Crawford. Will it retain the testimonial versus non-testimonial distinction? Will it broaden the types of hearsay (out-of-court statements made for the truth of the matter asserted) that fall under and are subject to the Confrontation Clause’s guarantees?

Justices Alito and Gorsuch believe it’s time to have that conversation.