"Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence."
– John Adams
The Constitution guarantees 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. This affirmation ensures that, in criminal trials, the government will bring forth witnesses for the purpose of confrontation – regardless of burden, regardless of discomfort, regardless of cost, and regardless of whether the production of the witness may result in an acquittal. This was - and is - the promise of the Confrontation Clause.
For the last several years, the Supreme Court of the United States has reflected upon the meaning of confrontation without much resolution. Two Justices seem comfortable requiring the government to present witnesses for live testimony in order to comply with an accused’s right to enjoy being confronted with witnesses against him. Three Justices are not at all convinced that the Confrontation Clause requires any such thing. One Justice constantly craves more information before reaching a decision; two have, in political terms, flip-flopped on what exactly the Constitution requires; and one stands alone in analysis, but has concurred in the outcome of every majority opinion. Far from clarifying the issue, recent cases have confused what we are seeking to protect with the right to confront witnesses in criminal cases. Fundamentally, we should be seeking to ensure that those accused of crimes, whether guilty or innocent, have the opportunity, fairly, to contest the evidence against them and hold the government to its burden of proof beyond a reasonable doubt.
The two primary conflicting views from the Court in regard to the Confrontation Clause suggest that a small but forceful wing, often able to cobble together a majority or plurality is concerned with the procedural safeguard of the 6th Amendment’s guarantee. A larger contingent, but often only enough to muster a dissent, has concerns about the cost and practicality of the burden on the government if required to present witnesses. What makes this particular issue most interesting is that the two staunch supporters of a pure, procedural protection are not usually seen as politically aligned, and the strongest voices in favor of concerns of cost over language are often seen as “strict constructionists” of the Constitution.
But, there is no language in the Sixth Amendment about considering the cost of a trial, the expense of testimony, the burden on the government or the rules of evidence as determined by states, regardless of the protections of the Constitution. The passive tense of the 6th Amendment suggests that the Framers intended to burden the government, “the accused shall…be confronted with the witnesses against him…” Those very words suggest that in order to subject an individual to a potential loss of liberty, the government must present all accusatory witnesses for the purpose of confrontation.
In Crawford v. Washington, 541 U.S. 36 (2004), the Court overruled significant aspects of Ohio v. Roberts, 448 U.S. 56 (1980) and announced the rule that the Confrontation Clause demands live testimony in regard to all testimonial out of court statements. This watershed ruling required re-examination of many evidentiary standards and has prompted significant litigation. The key question revolves around the meaning of “testimonial” evidence – evidence that bears witness or acts like a witness in some accusatory fashion. Sincere concerns surround the limits of evidentiary practices that have permitted the introduction of such evidence and whether they comport with constitutional requirements.
In Davis v. Washington, 547 U.S. 813, 822 (2006), the Court declared that, from an objective standpoint, (1) a statement with the primary purpose of enabling police to meet an ongoing emergency was not testimonial and (2) a statement with the primary purpose of establishing or proving past events for the purpose of prosecution was testimonial. In Michigan v. Bryant, 131 S.Ct. 1143 (2011), despite using this test, courts disagreed: the Michigan court concluded that the statement was “objectively” made to produce evidence at trial and the Supreme Court determined that the statement was “objectively” made to address an ongoing emergency.
In Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), a divided Court determined that a certificate of analysis in regard to narcotics bore witness as to an element of the offense and was prepared specifically for the purpose of so accusing the defendant. It was deemed inadmissible without the live testimony of the analyst subject to cross examination. Similarly, in Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011), a plurality of the divided Court ruled that an analyst’s report regarding blood alcohol content was inadmissible if the analyst who prepared the report was not subject to cross examination. Human error can occur along the way; machines may not be properly maintained, etc. and this information is all ripe for cross examination.
So, it was no surprise that the Court would fracture again when determining whether a DNA expert could rely on a report of another DNA expert in reaching a professional conclusion. Although the underlying report was never admitted at trial, the jury learned that it revealed the DNA profile of the accused which was used to connect him to a crime. The question was whether any information could be submitted to the jury when the defendant did not have the opportunity to confront the author of the report and challenge the procedures used to create it. In Williams v. Illinois, 2012 WL 2202981 (U.S.Ill.), the Court concluded that an expert can testify to her own conclusions, part of which depended on another expert’s analysis, without offending the Confrontation Clause (as to the other expert’s analysis). Sort of. As the dissent points out, despite the plurality decision, a minority of the Court actually agreed on the reasoning in regard to the Confrontation Clause. Not only are litigants confused, but the Court is, too.
Significant to the Court in the Williams decision was that the outside lab was “accredited”, that there was little or no risk of contamination, that there was not even a suspect known that time, and that the DNA profile created just happened to be consistent with the defendant’s. This is a little bit like admitting the fruits of an unconstitutional search based upon what the police found rather than on the probable cause to search. Yet, the plurality concluded that confrontation was not a problem because the witness who testified could be cross examined about whether or not she knew that the analyst who created the DNA profile upon which she based her conclusion did everything according to industry standards.
Query whether if the witness was so questioned (preferably in voir dire prior to testifying at trial) and stated that she did not know how the results were obtained, upon what equipment and whether that equipment was maintained, whether proper controls were in place, etc., and that if correct protocols had not been followed the results were useless to her final analysis. The evidence, including her testimony, should then be deemed not relevant, confusing to the jury, more prejudicial than probative and excluded for evidentiary reasons regardless of the Confrontation Clause.
Given that the purpose of the Clause is to allow for challenge to questionable evidence, “it is unlikely that defense counsel will insist on live testimony whose effect will be merely to highlight rather than cast doubt upon the forensic analysis. Nor will defense attorneys want to antagonize the judge or jury by wasting their time with the appearance of a witness whose testimony defense counsel does not intend to rebut in any fashion.” Melendez-Diaz v. Massachusetts, 129 S.Ct. at 2542.
As legend goes, the treason trial of Sir Walter Raleigh prompted the inclusion of the Confrontation Clause in the Bill of Rights. In that case, pleading for his life, Sir Raleigh begged the production of Lord Cobham, his accuser, for the purpose of live testimony. Lord Cobham was held in a prison cell and easily brought forth by the court. However, it was deemed to be a burden to the King to produce the live witness (especially since he would recant the accusation). The evidence in the case, hearsay all, convinced the jury to convict - and Sir Raleigh was sentenced to death. His case was, undoubtedly, driven by political concerns, England being in the throes of royal upheaval at the time. But, the death sentence was real and, ultimately (albeit years later), served. Sir Raleigh asked only for the opportunity to challenge questionable evidence by the Crown in order to save his life. Denied this he was executed.
Just as in 1603, the government today has enormous power, including the authority to restrict liberty and execute death sentences. As a nation we want to ensure that verdicts are fair and reached upon appropriate evidence duly contested by able counsel at trial. We need to analyze, carefully, what types of evidence can and should be used to determine material facts in criminal trials. Even if cost factors into the equation, it is far more expensive to litigate these issues than it is to call witnesses when the testimony is subject to challenge.
Without question, the right of confrontation belongs to the criminal defendant whose liberty is at stake. But, when viewed rationally, all of society benefits when the right is construed broadly. The accused has confidence that his trial was fair. And, jurors – individuals exercising the highest form of public service known to democracy – determine guilt or innocence premised upon the most accurate view of the evidence.
