Constitutional Right to Confront Witnesses Watered Down: Statements Describing Shooter Not Testimonial, Admissible Without Confrontation and Cross Examination
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
What a strange Supreme Court we have! You know it’s strange when Justice Sonia Sotomayer authors a lead opinion, joined by Roberts, Kennedy, Breyer and Alito, which curtails longstanding constitutional jurisprudence regarding the Sixth Amendment’s Confrontation Clause over the dissent of Justice Antonin Scalia. However, this was exactly the case in the Court’s recent opinion in Michigan v. Bryant, in which the Court held that statements made to police identifying and describing a “shooter” were not testimonial and thus were admissible in trial, even though the witness was dead and could not testify.
But we should not have been taken aback. We have become accustomed to seeing the Court in recent years redefining and restricting historical precedents to the point that they have little or no constitutional value, i.e., the Miranda decision (here, here and here).
This time it’s the Sixth Amendment’s Confrontation Clause which guarantees a criminal defendantthe right to confront and cross-examine adverse witnesses against him. The Supreme Court thirty years ago in Maryland v. Craig made it clear that the historical foundation of the Sixth Amendment is rooted in the constitutional premise that “face-to-face confrontation enhances the accuracy of fact-finding reducing the risk that a witness will wrongfully implicate an innocent person.” Just two years before its Craig decision the Court had observed in Coy v. Iowa that “it is always more difficult to tell a lie about a person ‘to his face’ than ‘behind his back.’”
Then the Supreme Court in 2004 in a landmark decision in Crawford v. Washington held that a major underpinning of the Sixth Amendment is to prevent the admission of hearsay evidence because a criminal defendant cannot cross-examine what is called “out-of-court” testimony. TheCrawford court clarified the difference between “testimonial” and “nontestimonial” hearsay evidence. Crawford specifically held that the use of testimonial hearsay violates a criminal defendant’s confrontation rights unless the individual making the hearsay statements is unavailable at trial and the defendant had a prior opportunity to cross-examine him/her. Nontestimonial hearsay, on the other hand, did not violate the Confrontation Clause and its admission would be determined by local rules of evidence. The Crawford court rejected the use of recorded statements given to the police by a wife incriminating her husband in a stabbing incident who refused to testify against her husband by invoking the marital privilege.
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