Guest Commentary on Crawford v. Washington by Prof. Richard Friedman: I asked Prof. Richard Friedman of the University of Michigan Law School to provide VC readers with a commentary on last week’s Supreme Court Confrontation Clause decision in Crawford v. Washington, a decision that has not received sufficient attention in the blogosphere (but see here and here). Rich filed an amicus on behalf of eight other law profs and himself in support of Crawford, and was second chair at the argument. For several years he advocated a theoretical change in Confrontation Clause doctrine much like the one adopted in Crawford. Here’s the commentary:

In Crawford v. Washington, No. 02-9410, decided last Monday, the Supreme Court dramatically changed its conception of the Confrontation Clause of the Sixth Amendment to the Constitution. The effects on criminal prosecutions will likely be very significant.

The Confrontation Clause protects the right of a criminal defendant to “be confronted with the witnesses against him.” Before Crawford, the Court applied the Clause broadly but loosely. That is, anybody who made an out-of-court statement that the prosecution offered into evidence as proof of what it said was deemed a witness – but if a court concluded that the statement was sufficiently reliable then usually it could be admitted even though the defendant had not had a chance to confront and cross-examine the maker of the statement. Justice Scalia’s opinion for seven justices in Crawford narrows the focus of the Confrontation Clause to statements that are considered “testimonial,” but as to these the demand of the Clause is unequivocal: The statement cannot be admitted against an accused, no matter how reliable a court might consider it to be, unless the defendant has had an opportunity to examine the maker of the statement.

The Crawford Court did not provide a firm definition of the meaning of testimonial. For purposes of this case, that was not necessary. The statement involved in Crawford was one made by a witness in the police station house the night of the incident at issue by an observer of the incident (the wife of the defendant) who was unavailable to be a witness at trial. Under any useful definition, she was a witness, for someone speaking to the authorities after the apparent commission of a crime is self-consciously creating evidence that may, if the adjudicative system allows it, be used as evidence at trial. Preventing the creation of evidence in this way was at the core of concern that underlay the Confrontation Clause.

Prosecutors afraid that witnesses who have made favorable statements may not be available to testify at trial should no longer prepare to argue that the statements are reliable. Instead, they should arrange an early opportunity for the defendant to cross-examine. But Crawford raises many questions. For example, what are the consequences with respect to the admissibility of statements made in 911 calls, some of which seem more designed to create evidence than to secure immediate assistance? Should routine laboratory reports made in contemplation of prosecution be inadmissible if the technician does not testify? Shall statements to private persons, made in circumstances suggesting likely transmittal to the authorities, be considered testimonial? In what circumstances should a court find that an accused has forfeited the confrontation right, as by killing or intimidating the witness? The last two questions are particularly significant with respect to children, as are others: Shall some child declarants be considered at too early a stage of development, either cognitively or morally, to be considered witnesses? Crawford may also spur movements for some changes in law. For example – an unfortunate possibility – some jurisdictions will be tempted to exempt more prior statements of a witness from the rule of hearsay than they do now; if the prosecutor brings the witness to trial, where she can be cross-examined, the prior statement could then be admitted under California v. Green, 399 U.S. 149 (1970), if the witness testifies inconsistently with it. A better change would probably be to alter criminal procedure rules to facilitate depositions even before formal charges have been brought.

No doubt it will take years for the dust to settle. But Crawford should be regarded as a highly beneficial development, a decision that interprets the Confrontation Clause faithfully and that thus restores it to its proper place as a central protection of our system of criminal justice.