Confusing Logic from SCOTUS and Conflict Among Appellate Courts Leave Trial Courts Guessing The Meaning Of Confrontation
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
The Sixth Amendment is one of the most important amendments of the United States Constitution. It ensures that an “accused shall enjoy the right … to be confronted with witnesses against him.” In 1988 the U.S. Supreme Court, in Coy v. Iowa, observed that “it is always more difficult to tell a lie about a person ‘to his face’ than ‘behind his back.’” Just two years later, in Maryland v. Craig, the Court made this follow up observation: “[F]ace-to-face confrontation enhances the accuracy of fact-finding by reducing the risk that a witness will wrongfully implicate an innocent person.” That observation is critically important because, as pointed out by the New York-based The Innocent Project, roughly 75 percent of the nation’s 282 DNA exonerations involved eyewitness misidentification.
Since the Confrontation Clause was forcefully made applicable to the states through the Fourteenth Amendment by the Supreme Court in 1965, in Pointer v. Texas, the Sixth Amendment has been a source of evolving, though conflicting, change in a long line of state cases. In an effort to resolve some of the conflict associated with Sixth Amendment cases, the Supreme Court in 2004 handed down Crawford v. Washington which 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. Crawford 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. Non-testimonial hearsay, on the other hand, does not violate the Confrontation Clause and its admission would be determined by local rules of evidence. Crawford rejected the use of recorded statements given to the police by a wife incriminating her husband in a stabbing incident but who refused to testify against her husband by invoking the marital privilege (here).
Two years later, in Davis v. Washington, the Supreme Court provided a more definitive clarification of testimonial evidence. Davis held that hearsay is testimonial when, under the “totality of the circumstances,” a law enforcement interrogation is part of an investigation into past events about a case and not in response to an “ongoing emergency.” Davis upheld the use of out-of-court statements made to a 911 operator during an emergency call for police assistance which implicated the defendant in domestic violence. Then, in 2009 the Supreme Court handed decided Giles v. California which involved the use of incriminating statements against a husband/accused given to the police by a wife several weeks before she was killed by the accused. Giles held that the incriminating testimonial statements of the deceased wife used against the accused violated the Confrontation Clause.
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