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     122 HVLR 1634 FOR EDUCATIONAL USE ONLY Page 1 122 Harv. L. Rev. 1634

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    Harvard Law Review

    April, 2009



    David Alan Sklansky [FNa1]

    Copyright ? 2009 Harvard Law Review Association; David Alan Sklansky


    Introduction ............................................... 1635

    I. Anti-Inquisitorialism at Work ........................... 1642

     A. Anti-Inquisitorialism and Confrontation ............... 1643

     1. Confrontation and Cross-Examination ................. 1643

     2. Confrontation Revisited ............................. 1648

     B. Anti-Inquisitorialism, Sentencing, and Juries ......... 1657

     C. Anti-Inquisitorialism and Procedural Default .......... 1661

     D. Anti-Inquisitorialism and Confessions ................. 1665

    II. Assessing Anti-Inquisitorialism ........................ 1668

     A. The Originalist Argument for Anti-Inquisitorialism .... 1670

     B. The Holistic Argument for Anti-Inquisitorialism ....... 1677

     C. The Functionalist Argument for Anti-Inquisitorialism .. 1685

    III. Forgoing Anti-Inquisitorialism ........................ 1688

     A. Confrontation ......................................... 1688

     B. Sentencing ............................................ 1694

     C. Procedural Default .................................... 1697

     D. Self-Incrimination .................................... 1700

    Conclusion ................................................. 1703

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     *1635 A broad and enduring theme of American jurisprudence treats the Continental, inquisitorial system of criminal procedure as epitomizing what our system is not; avoiding inquisitorialism has long been thought a core commitment of our legal heritage. This Article examines the various roles that anti-inquisitorialism has played and continues to play in shaping our criminal process, and then it assesses the attractiveness of anti-inquisitorialism as a guiding principle of American law. The Article begins by describing four particularly striking examples of anti-inquisitorialism at work: the Supreme Court's recent reinterpretation of the Confrontation Clause; the Court's invalidation of mandatory sentencing schemes that rely on facts found by the trial judge; the Court's endorsement of procedural default rules rejected by the International Court of Justice; and the longstanding invocation of the inquisitorial system in the law of interrogations and confessions. The Article then considers three different reasons the inquisitorial system might be thought a helpful guide to the paths American criminal procedure should not take. The first reason is originalist; it takes inquisitorial processes to be the chief set of evils

    against which the criminal procedure provisions of the Constitution were intended to provide protection. The second reason is holistic; it appeals to the organic integrity of our adversary system. The third reason is instrumental; it assumes that the

    inquisitorial system simply is worse than ours--worse at uncovering the truth, worse at protecting individual rights, or worse at preventing abuses of government authority. None of these arguments is fully convincing. There is little evidence that the criminal procedure provisions of the original Bill of Rights were originally intended, or understood, to serve as protections against the inquisitorial system. There is even less reason to think the Fourteenth Amendment had that aim. Regarding the holistic argument, the chief problems are, first, that it is harder than might be expected to identify the core elements of the inquisitorial system, and second, that there is little reason to think that our system of criminal procedure actually has the fragile kind of organic integrity that the argument assumes. Assessing the functionalist argument is more complicated. Elements of the adversary system may in fact have instrumental worth, particularly in protecting against authoritarian abuses. But that is a reason to value those elements of the adversary system, and to value them insofar as they serve other, more fundamental aspirations. It is not an argument for treating the inquisitorial system as epitomizing, across the board, what our system of criminal justice should strain to avoid.


     Anti-inquisitorialism is a broad and enduring theme of American criminal procedure. By anti-inquisitorialism, I mean the use of inquisitorial procedure as what William Connolly would call a "contrast-*1636 model," an idealized system against

    which we define our own. [FN1] A lengthy tradition in American law looks to the Continental, inquisitorial system of criminal adjudication for negative guidance about our own ideals. Avoiding inquisitorialism is taken to be a core com-mitment of our legal heritage.

     Not so long ago this way of thinking seemed to be waning, at least in majority opinions of the Supreme Court. In 1991, when Justice Stevens dissented from a decision limiting the scope of Miranda protections and accused the Court of favoring "an inquisitorial system of justice," [FN2] Justice Scalia's majority opinion expressed puzzlement. There was nothing magical about the labels "adversarial" and "inquisitorial," Justice Scalia explained. "What makes a system adversarial rather than inquisitorial" is simply "the presence of a judge who does not (as an inquisitor does) conduct the factual and legal investigation himself, but instead decides on the basis of facts and arguments pro and con adduced by the parties." [FN3] So the investigatory stage of any conceivable system of criminal justice, including ours, had to be inquisitorial; that was no cause for embarrassment. [FN4] And for most of the 1990s, the contrast model of inquisitorialism played a small role, by historical standards, in the Supreme Court's criminal procedure decisions.

     No longer. Take the Sixth Amendment right of a criminal defendant "to be confronted with the witnesses against him." [FN5] Among the biggest news in criminal procedure over the past few years--certainly the news with the largest impact on criminal trials in this country--has been the Supreme Court's dramatic reinterpretation of the Confrontation Clause in Crawford v. Washington [FN6] and Davis v. Washington, [FN7] a pair of cases in which Justice Scalia wrote for the Court, and in which anti-inquisitorialism figured heavily. In Crawford, Justice Scalia identified "the civil-law mode of criminal procedure" as "the principal evil at which the Confrontation Clause was directed." [FN8] This historical claim provided much of the support for the Court's new rule that the Confrontation Clause generally bars the introduction of hearsay against a criminal defendant if, and only if, the hearsay is "testimonial." [FN9] The notion that the Confrontation Clause serves first and foremost to protect Americans from the inquisitorial system of criminal adjudication *1637 similarly

    served as the Court's chief reference point as it began to work out, in Crawford and later in Davis, the definition of "tes-timonial" hearsay.

     Nor are Crawford and Davis unique in this regard. Three months after Crawford, the Court issued its far-reaching decision in Blakely v. Washington, [FN10] concluding that the Sixth Amendment right to a jury trial bars mandatory sentencing

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    schemes that rely on facts found by the judge rather than the jury. Writing again for the Court, Justice Scalia stressed that "the Framers' paradigm for criminal justice" rejected "civil-law traditions" in favor of "the common-law ideal of limited state power accomplished by strict division of authority between judge and jury"; the Constitution "do[es] not admit the contention that facts are better discovered by judicial inquisition than by adversarial testing before a jury." [FN11]

     One week after deciding Davis, the Court again pointed to the adversarial, noninquisitorial nature of our criminal process, this time in refusing to follow rulings by the International Court of Justice (ICJ) interpreting the Vienna Convention on Consular Relations, [FN12] which the United States has joined. The ICJ had barred the application of procedural default rules to claims raised by criminal defendants under the Vienna Convention. But the Supreme Court refused to go along. Writing for the majority in Sanchez-Llamas v. Oregon, [FN13] Chief Justice Roberts explained that "[p]rocedural default rules generally take on greater importance in an adversary system such as ours than in the sort of magistrate-directed, inquisitorial legal system characteristic of many of the other countries that are signatories to the Vienna Convention." [FN14] The ICJ's rulings, the Chief Justice concluded, were "inconsistent with the basic framework of an adversary sys-tem." [FN15]

     Moreover, the Court continues to rely on the contrast model of inquisitorialism in shaping the constitutional doctrines governing interrogations and confessions. Here is Justice Kennedy, for example, explaining for the Court in 1999 why a guilty plea may not be treated as a waiver of the defendant's Fifth Amendment privilege to stay silent at sentencing: oth-erwise the prosecutor could call the defendant to the stand, "undermining the long tradition and vital principle that criminal proceedings rely on accusations proved by the Government, not on *1638 inquisitions conducted to enhance its own pro-

    secutorial power. . . . '[O]urs is an accusatorial and not an inquisitorial system."' [FN16] Language like this has long been standard in interrogation cases; the insistence that our system is accusatorial or adversarial rather than inquisitorial can be

    found in decisions stretching back over more than a century. [FN17] Similar language can also be found, albeit less commonly, in search-and-seizure cases, [FN18] prosecutorial discretion cases, [FN19] trial procedure cases, [FN20] and right-to-counsel cases. [FN21] Anti-inquisitorialism is today what it has been for most of American history: a fixture of our criminal procedure jurisprudence.

     That fixture has had its critics, of course, even in the United States. From time to time there are suggestions, mainly from scholars, that European criminal procedure may have features worth copying. [FN22] But these are voices in the wilderness. If they think about it at all, the vast majority of American scholars, like the vast majority of American judges, are apt to agree with the Supreme Court that "the civil-law mode of criminal procedure," far from meriting emulation, should be studiously avoided--indeed, that avoiding inquisitorial justice is what our own system is all about. [FN23] There is a broad consensus that the inquisitorial system can and should serve as a kind of negative polestar for American criminal procedure.

     Whether the consensus is warranted is another question. Take Crawford and Davis, for example. Construing the Con-frontation Clause as a bulwark against Continental forms of criminal adjudication led the Court to some odd conclusions, including that the formality *1639 of the setting in which a statement was made--meaning, for the most part, the steps the government took to keep an accurate record of the statement or to assure its reliability-- should count heavily against admissibility of the statement in a later trial. [FN24] More fundamentally, in relying on "the civil-law mode of criminal procedure" as a contrast model, the Court never made clear what, precisely, was wrong with that mode of procedure, or how it threatened values that warranted constitutional protection. Sometimes the Court implied that inquisitorial process was bad because it relied on untrustworthy evidence. [FN25] At other times the Court suggested the real concern was that Continental criminal procedure lent itself too easily to authoritarian abuse. [FN26] And sometimes it seemed as if the chief sin of Continental criminal procedure was simply that it was Continental--"wholly foreign" to our way of doing things. [FN27]

     All of this could be excused if there were some standard account of what makes inquisitorial process so objectionable. But there is not. Nor is there even agreement about what makes a procedural system inquisitorial. In Crawford and Davis, the Court proceeded on the assumption that at least one critical attribute of "the civil-law mode of criminal procedure" was the "use of ex parte examinations as evidence against the accused." [FN28] But elsewhere, as we have seen, the Justices have taken the view that the adversarial system is defined by the presence of a neutral, detached judge, acting solely as a passive umpire, and relying on the parties to investigate the facts and the law. At other times the Court has found the key distin-guishing feature of the "inquisitorial system" in the reliance on confessions--convicting a defendant "out of his own mouth" [FN29]--or in the trust placed in professional factfinders rather than lay jurors. [FN30]

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     And there is another difficulty. I have been using the terms "inquisitorial" and "civil law" interchangeably, much as the Supreme Court seemed to do in Crawford, Davis, and Sanchez-Llamas. That usage reflects a particular understanding of the legal systems of Continental Europe: that those systems, in their current form, are still identifiably the outgrowths of the

    inquisitorial systems of medieval Europe. This is the implicit view of many, if not most, American judges and *1640

    scholars. Occasionally Europeans talk in the same way [FN31]--but only occasionally. Most Continental judges and scholars, along with comparative scholars both in America and overseas, describe Europe's modern systems of criminal procedure as "mixed," combining aspects of the old, inquisitorial process with elements borrowed from, or at least con-vergent with, the common law tradition. [FN32] Some of the borrowing or converging is recent, but much of it took place during a wave of reforms in the nineteenth century--reforms that included public trials, oral proof, guarantees of judicial impartiality, limited use of lay adjudicators, protections against compelled self-incrimination, and other procedural features that Americans still tend to view as incompatible with the "civil law mode of criminal procedure." [FN33] Of course, even if the inquisitorial system is today no more than a "historical 'archetype,"' [FN34] it still may provide guidance about what our own procedures aim to avoid. But then it becomes especially important to be clear about the system's essential cha-racteristics and why it deserves shunning. And certain versions of anti-inquisitorialism then become particularly hard to justify--such as the Supreme Court's suggestion in Sanchez-Llamas that procedural default rules, which may be unim-portant in "inquisitorial" countries, nonetheless remain essential to the "basic framework" of our "adversary system." [FN35]

     My goals in this Article are therefore twofold. First, I want to examine the various roles that anti-inquisitorialism has played and continues to play in shaping our criminal process. Second, I want to assess the attractiveness of an-ti-inquisitorialism as a guiding principle of American jurisprudence. Roughly speaking, the first chunk of the Article will be descriptive and analytic, the second portion will be evaluative, and the last bit will be something of a combination.

     *1641 More precisely, Part I of the Article will discuss how the contrast model of inquisitorial process is employed in American criminal procedure. I will focus on four particularly striking examples of anti-inquisitorialism at work: the Su-preme Court's recent reinterpretation of the Confrontation Clause, the jury trial right applied in Blakely, the procedural default ruling in Sanchez-Llamas, and the longstanding, rhetorical invocation of the inquisitorial system in the law of interrogations and confessions. Unpacking the role of anti-inquisitorialism in each of these areas will require some detours, because the doctrines in question have taken a number of twists and turns. This is particularly true of the confrontation cases.

     Part II of the Article will consider three different reasons the inquisitorial system might be thought an appropriate contrast

    model in American criminal procedure. The first reason is originalist. It takes inquisitorial processes to be the chief set of evils against which the criminal procedure provisions of the Bill of Rights were intended to provide protection. The second reason is holistic, appealing to the organic integrity of our adversary system. The argument here is that the adversary system,

    whatever its flaws, is our system, and that for the system to work it must be true to itself. Practices that might function tolerably in a very different system--like the systems of criminal procedure found in civil law countries--might nonetheless prove unworkable in ours. The third reason is instrumental. Maybe the inquisitorial system simply is worse than ours: worse at uncovering the truth, worse at protecting individual rights, or worse at preventing abuses of government authority.

     In the end, I will argue that none of these considerations justify the role that anti-inquisitorialism plays in American criminal procedure, although I will have some sympathetic things to say about the instrumental arguments. So Part III of the Article will ask how our law of criminal procedure might look without the contrast model of the inquisitorial system.

     I should say a few words about what this Article is not. First of all, it is not a call to make America's criminal justice system

    look more like those abroad. I do think there are things we can learn from civil law systems, and I think one cost of an-ti-inquisitorialism is that it can blind us to those lessons. But I will not be rehearsing the provocative arguments that others

    have made, from time to time, for emulating the way criminal justice is administered in France, in Germany, or elsewhere in the civil law world. [FN36] My prescriptive claim will be more modest: not that we should try to copy civil law systems, but simply that we should not go out of our way to differentiate our own system *1642 from theirs, and that we should stop

    treating differentiation of that kind as a paramount constitutional value.

     Second, this is not an article about the "true" nature of the inquisitorial system or what "really" divides it from the ad-versarial system. Nor is it an article about how, if at all, the "adversary" system should be distinguished from an older, premodern "accusatory" system. [FN37] This is not, in short, an exercise in comparative law--either in its old fashioned,

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    taxonomic mode, or in its more modern, model-building mode--and it is not an exercise in legal history. I will draw on scholarship in comparative law and legal history, but only when it bears on my central concerns: how ideas about the inquisitorial system, whether accurate or not, help to shape American criminal procedure, and whether they should con-tinue to play that role.

     Finally, this is not, except tangentially, an article about the general practice of defining a legal system by distinguishing it

    from a foreign system taken as self-evidently inferior--what one scholar of comparative law has called "legal nationalism" [FN38] and another, more sympathetically, has termed "aversive constitutionalism." [FN39] Views on this broader practice are divided. Some people deplore it as an invitation to insularity; [FN40] others praise it as an effective way of "fixing the essential constitutional character of a national polity." [FN41] I incline toward the former view, but I will stay agnostic here

    about the merits of the larger practice. Plainly much depends on the particulars. My focus is on a specific instance of legal nationalism or aversive constitutionalism: the use of the inquisitorial system as a contrast model in American criminal procedure.

    I. Anti-Inquisitorialism at Work

     Before assessing anti-inquisitorialism as a theme of American criminal procedure, we need to examine it in operation, preferably *1643 in more than one context. We will start with the prominent role that the contrast model of inquisitorial process has played in the Supreme Court's recent reinterpretation of the Confrontation Clause. Then we will consider, in turn, the employment of that contrast model in Blakely v. Washington to invalidate mandatory sentencing schemes that rely on facts found by the trial judge, and in Sanchez-Llamas v. Oregon to justify the application of procedural default rules rejected by the International Court of Justice. Finally, I will discuss the area of criminal procedure in which an-ti-inquisitorialism has been invoked longer and more insistently than in any other: the constitutional regulation of inter-rogations and confessions. In each of these doctrinal areas, and especially in the first, we will need to take some detours in order to understand the context in which anti-inquisitorialism is operating.

A. Anti-Inquisitorialism and Confrontation

     1. Confrontation and Cross-Examination.--The Confrontation Clause of the Sixth Amendment gives every criminal de-fendant "the right . . . to be confronted with the witnesses against him." [FN42] Along with the rest of the Bill of Rights, the

    Sixth Amendment originally applied only to the federal government. [FN43] But like most of the other provisions of the Bill of Rights, the Confrontation Clause was found applicable to the states by the Warren Court, on the theory that it was part of the "due process of law" protected against the states by the Fourteenth Amendment. [FN44]

     The drafters and ratifiers of the Confrontation Clause left little direct evidence of what they intended to require; the clause

    comes to us, the Justices have noted, "on faded parchment." [FN45] Partly as a consequence, there has long been contro-versy about how to interpret the clause--both about what it means to be "confronted" and about who counts as a "witness."

     Letting a defendant "confront" a witness could simply mean having the witness testify in the defendant's presence. Or it could mean giving the defendant a chance to argue directly with the witness, requiring the kind of unstructured, face-to-face "altercation" that was common in early modern criminal trials, both in England and on the *1644 Continent,

    and that some civil law systems still retain. [FN46] But the Supreme Court has long interpreted the Confrontation Clause to guarantee, first and foremost, neither a simple encounter nor an unmediated argument, but something more formal: cross-examination of prosecution witnesses by defense counsel in front of the jury. The constitutional violation in Pointer v. Texas, [FN47] the decision extending the Confrontation Clause to state prosecutions, arose precisely because the defen-dant's only chance to question his alleged victim occurred at a preliminary hearing, before the defendant had been assigned a lawyer. [FN48] The great evidence scholar John Henry Wigmore took cross-examination to be the "main and essential" purpose of confrontation, [FN49] and the Supreme Court has quoted his words and followed his lead. [FN50]

     Wigmore was emphatic about this point, and his argument rested in part on his own version of anti-inquisitorialism. For Wigmore, as for Jeremy Bentham a century earlier, the chief advantage com-mon law trials had over civil law procedures, the "great and permanent contribution of the Anglo-American system of law to improved methods of trial-procedure," was not the jury, but cross-exam-ination--"beyond any doubt the greatest legal engine ever invented for the discovery of truth." [FN51] Wigmore blamed the unavailability of that "engine" for "some of the great failures of justice in Conti-nental trials," and he thought the "special weakness of Chancery procedure (which followed Continental traditions) lay in its obstacles to an effective cross-examination." [FN52] This exalted view of cross-examination predisposed Wigmore to see it as the

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    "main idea" [FN53] and the "original and fundamental object" of confrontation. [FN54] "If there has *1645 been a

    Cross-examination," Wigmore thought, then "there has been a Confrontation." [FN55]

     Wigmore acknowledged that physical, face-to-face confrontation did more than facilitate cross-examination: it gave the judge and jury the benefit of seeing the witness's demeanor while testifying, and it could thereby produce "a certain sub-jective moral effect" on the witness. [FN56] These benefits, though, were very much "secondary and subordinate," [FN57] and they did not depend on the defendant and the witness actually being brought face to face, but only on the witness testifying live before the adjudicators. [FN58] Wigmore relegated to "earlier and more emotional periods" of English history the idea that a face-to-face encounter with the defendant might "unstring the nerves of a false witness," but he noted,

    with a touch of condescension, that "French practice still shows this notion of confrontation, in liveliest manner." [FN59]

     The Supreme Court has largely followed Wigmore in treating cross-examination as the central point of confrontation. Indeed, the Court has called "reasonable latitude" for cross-examination the very "essence of a fair trial." [FN60] The physical aspect of confrontation, the "face-to-face meeting" between defendant and accuser, has received protection too, [FN61] but less insistently. [FN62]

     The meaning of the term "confronted" in the Sixth Amendment is thus largely settled, and has been so for decades. Con-frontation means an opportunity for cross-examination by defense counsel in front of the jury, ordinarily with the defendant and the witness both in the courtroom. [FN63] There is controversy only at the edges, chiefly about the limits that can be placed on cross-examination and the circumstances in which a "face-to-face meeting" can be dispensed with.

     There has been much more controversy about who qualifies as a "witness" under the Confrontation Clause. I need to say a bit about *1646 that controversy in order to lay the groundwork for the discussion of Crawford and Davis below. "Witness" could be defined straightforwardly to mean someone who comes to court and testifies. Then the Confrontation Clause would simply govern trial procedures, giving defendants a right to have prosecution witnesses cross-examined in their presence. The clause would say little about the admissibility of testimony or physical evidence of statements made earlier, outside of court, which would be regulated entirely by statutory and common law rules about hearsay evidence. This was in fact Wigmore's position. He thought the constitutional guarantee of confrontation meant only that "so far as testimony is required under the Hearsay rule to be taken infra-judicially, it shall be taken in a certain way, namely, subject to cross-examination,--not secretly or 'ex parte' away from the accused." [FN64] This was also the position reached ultimately by the second Justice Harlan. [FN65]

     But it has never been the Court's position. The Court has consistently taken the view that some uses of hearsay evidence against criminal defendants violate the Confrontation Clause. In fact the vast majority of the Supreme Court's Confronta-tion Clause cases have involved challenges to hearsay evidence. [FN66] The reason is not hard to see. Introducing evidence of an out-of-court accusation from someone who never testifies raises some of the same concerns as examining a witness outside the defendant's presence: in either case the defendant has no opportunity to cross-examine the accuser in front of the jury. As the Court has often pointed out, the hearsay rule and the Confrontation Clause "protect similar values" [FN67] and "stem from the same roots." [FN68]

     In the traditional telling, those roots lie in grievances about prosecutions based on affidavits and depositions taken ex parte

    from the defendants' accusers--especially in the infamous English treason trials of the 1500s and early 1600s, and most particularly in the 1603 trial of Sir Walter Raleigh. Raleigh was convicted of joining the so-called Main Plot to murder James I and to place Arabella Stuart on the throne. The core evidence against him consisted of a written examination *1647

    of the plot's alleged leader, Lord Cobham, and a letter Cobham later wrote. Raleigh asked repeatedly, but unsuccessfully, for Cobham to be brought from his cell to the courtroom. The trial ended in a sentence of execution, which was eventually carried out. [FN69] Widespread revulsion at the conduct of Raleigh's trial has long been credited with helping spur de-velopment both of the common law right to confrontation and of the hearsay rule. [FN70]

     The Court has therefore thought it plain that the Confrontation Clause excludes some hearsay. [FN71] At the same time, the Justices have been wary of treating all prosecution hearsay as a constitutional violation; that would "abrogate virtually every hearsay exception" and be "too extreme." [FN72] Over a century ago, in its first case applying the Confrontation Clause, the Supreme Court warned that "general rules of law of this kind, however beneficent in their operation and val-uable to the accused, must occasionally give way to considerations of public policy and the necessities of the case." [FN73] The Court retained this pragmatic perspective on the Confrontation Clause throughout the 1900s. The trick was deciding

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    where to draw the line.

     Nearly thirty years ago, in Ohio v. Roberts, [FN74] the Court drew the line at reliability. The Justices reasoned that the "underlying purpose" of confrontation was "to augment accuracy" by "ensuring the defendant an effective means to test adverse evidence." [FN75] So prosecution hearsay was barred by the Confrontation Clause unless it carried "adequate 'indicia of reliability"'--either because the statements at issue fell, by statute or common law, within a "firmly rooted" exception to the hearsay ban, or because they bore "particularized guarantees of trustworthiness." [FN76] The Court eventually made clear that it deemed all *1648 of the myriad hearsay exceptions codified in the Federal Rules of Evidence

    and adopted by most of the states to be "firmly rooted." [FN77] This amounted to allowing the Confrontation Clause to track the Federal Rules of Evidence, because most states have copied the Federal Rules of Evidence virtually verbatim. [FN78]

     Partly because it seemed odd to hitch constitutional doctrine to the twists and turns of evidence law, the Roberts approach to the Confrontation Clause was never popular with commentators. By the time the Court decided Crawford v. Washington in 2004, it was ready for a new approach.

     2. Confrontation Revisited.--The facts were these: Michael Crawford was convicted of stabbing a man who allegedly tried to rape Crawford's wife, Sylvia. The evidence against him included a tape-recorded police interrogation of Sylvia Crawford, in which she described the stabbing. Sylvia declined to testify against her husband at trial, invoking spousal privilege, but the prosecutors introduced her tape-recorded interrogation. Based in part on that evidence, the jury rejected Crawford's claim of self-defense. The trial judge found no violation of the Confrontation Clause because Sylvia's statements appeared reliable. The statements did not fall within a firmly rooted exception to the hearsay rule, but they had "particularized guarantees of trustworthiness": [FN79] they were based on direct observation, they were made soon after the events in question, they did not seek to shift blame, and they were made under questioning by a "neutral" law enforcement officer. [FN80] The intermediate appellate court reversed, finding the statements insufficiently reliable, but the state supreme court reinstated the conviction, relying chiefly on the manner in which the statements by Michael Crawford and Sylvia Crawford "interlocked." [FN81]

     *1649 The United States Supreme Court reversed. Writing for the majority, Justice Scalia made clear he agreed with Washington's intermediate court of appeals about the reliability of Sylvia Crawford's statements to the police, but he de-clined simply to "reweigh[] the 'reliability factors' under Roberts." [FN82] Instead, he took the occasion to revisit Roberts and to reject its entire approach, at least as applied to statements made in a police interrogation or to other hearsay that seemed "testimonial." For those statements, "the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation." [FN83] That meant that testimonial hearsay was inadmissible against a criminal defendant unless the defendant actually received an opportunity to cross-examine the witness, either at trial or in an earlier proceeding. And even then, statements by a witness who did not appear at trial would be inadmissible if the witness were available and could in fact be called to the stand. [FN84] The only exceptions the Court signaled it would accept to these imperatives were the equitable principle of "forfeiture by wrongdoing" [FN85] and, possibly, the venerable rule admitting dying declarations [FN86]--doctrines that the Court has since made clear are to be applied narrowly, with strict adherence to their contours in eighteenth-century common law. [FN87]

     The rules announced in Crawford brought both new rigidity and a large element of new confusion to the law of confron-tation. The Crawford requirements for the admissibility of testimonial hearsay against a criminal defendant are, by design, less flexible and less pragmatic than the Court's old approach to the Confrontation Clause. But the Court declined in Crawford, and has declined in subsequent cases, to offer any comprehensive set of criteria for distinguishing hearsay that is "testimonial" from hearsay that is not. So the rules announced in Crawford are both relatively inflexible and substantially ambiguous. What made them attractive to the Court?

     Part of the answer, Justice Scalia suggested in his majority opinion, was the even worse--because intrinsic--ambiguity of the Roberts test, with its reliance on the "[v]ague," [FN88] "manipulable," [FN89] and "amorphous" concept of "reliabil-ity." [FN90] Crawford is thus one of a series of criminal procedure decisions over the past decade and a half in which *1650

    Justice Scalia and to a lesser extent Justice Thomas have led the Court in trying to undo the substitution of "open-ended balancing tests" for constitutional guarantees that should be, and were intended to be, "categorical." [FN91] But Justice Scalia explained for the Crawford majority that the truly "unpardonable vice of the Roberts test" was not its unpredicta-bility but rather its failure to protect against "core" violations of the Confrontation Clause, like what had happened to

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    Michael Crawford. [FN92] Convicting a criminal defendant with statements from someone else's police interrogation--or someone else's testimony at a preliminary hearing, in front of a grand jury, or in a different trial--was a "core confrontation

    violation []," [FN93] because it bore such a strong resemblance to "the abuses at which the Confrontation Clause was directed." [FN94]

     And what were those abuses? The ones the Court had earlier identified: trials, like Raleigh's, where prosecutors relied on statements taken in the defendant's absence, without opportunity for cross-examination. And echoing Wigmore, the Court in Crawford gave this history an important, anti-inquisitorial gloss. Trial by affidavit, the injustice that befell Raleigh, was

    "the civil-law mode of criminal procedure." [FN95] This was a longstanding point of difference, Justice Scalia explained, between Anglo-American law and "continental civil law." Our "common-law tradition is one of live testimony in court subject to adversarial testing," whereas "the civil law condones examination in private by judicial officers." [FN96] (Note the present tense, a matter to which we will return later.) England had "at times adopted elements of the civil-law practice." [FN97] "[T]he great political trials of the 16th and 17th centuries," [FN98] including Raleigh's case, were examples of this, and so were the more widespread and mundane use of witness statements taken by low-level magistrates pretrial, under bail and committal statutes passed during the reign of Queen Mary in the sixteenth century--the so-called Marian statutes. [FN99] But statutory and judicial reforms in England reacted against these abuses, creating the right to confrontation later codified, across the Atlantic, in state declarations of rights and the Sixth Amendment to the United States Constitution. [FN100] Convicting *1651 Crawford with statements his wife made during police interrogation was a "core" violation of the Confrontation Clause because it smacked so strongly of Continental criminal procedure.

     The Court did not say in Crawford whether the Roberts test, or any other requirements derived from the Confrontation Clause, would continue to apply to nontestimonial hearsay introduced against a criminal defendant. The Court answered that question two years later, though, in Davis v. Washington. Writing again for the Court, Justice Scalia explained that the focus on testimonial statements was "so clearly reflected in the text" of the Confrontation Clause that it "must fairly be said

    to mark out not merely its 'core,' but its perimeter." [FN101] Davis thus makes clear that the Confrontation Clause now applies only to testimonial hearsay.

     Davis also threw some additional light on the key term "testimonial," at least in the context of questioning by law en-forcement officers or their agents. In that context, the Court held, statements are testimonial if "the circumstances objec-tively indicate . . . that the primary purpose of the interrogation is to establish or prove past events potentially relevant to

    later criminal prosecution," rather than to respond to an "ongoing emergency." [FN102] The Court therefore found no constitutional violation in the evidence used to convict Adrian Davis of assault: statements his former girlfriend, Michelle McCottry, made after calling 911 to report that he was attacking her. [FN103] Those statements included the name of her attacker, provided in response to questions from the 911 operator. [FN104] But the Court thought that even the questions about the assailant's identity appeared "necessary to be able to resolve the present emergency," because police dispatched to the scene would want to "know whether they would be encountering a violent felon." [FN105] The heart of the matter was that "[a]though one might call 911 to provide a narrative report of a crime absent any imminent danger, McCottry's call was plainly a call for help against bona fide physical threat. . . . She simply was not acting as a witness; she was not testifying."


     In this respect the Court thought McCottry's statements contrasted sharply with the statements at issue in Hammon v. Indiana, [FN107] a case consolidated for decision with Davis. Herschel Hammon was convicted *1652 of battery based on

    statements his wife, Amy Hammon, had made to police officers who came to the Hammons' house in response to a "do-mestic disturbance" report. [FN108] The Court found these facts essentially indistinguishable from the circumstances in Crawford. "There was no emergency in progress," so it was "entirely clear . . . that the interrogation was part of an inves-tigation into possibly criminal past conduct." [FN109] Amy Hammon's statements were therefore testimonial, unlike Michelle McCottry's statements. Justice Thomas, concurring in Davis but dissenting in Hammon, could not see the dif-ference: neither the 911 call in Davis nor the at-the-scene questioning in Hammon looked to him much like formal, "civ-il-law . . .ex parte examinations." [FN110] This was too much originalism even for Justice Scalia, who warned that "[r]estricting the Confrontation Clause to the precise forms against which it was originally directed is a recipe for its ex-tinction." [FN111] Amy Hammon's statements were formal enough--either (as the Court suggested at one point) because she was questioned away from her husband, in a separate room, "with the officer receiving her replies for use in his 'investigat[ion],"' [FN112] or (as the Court suggested elsewhere) because "lies to [police] officers are criminal offenses." [FN113]

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     Put aside for the moment whether the historical claims in Crawford, in Davis, and in Giles v. California [FN114]--the decision narrowly construing the dying declaration and equitable forfeiture exceptions to the confrontation right--were accurate. Put aside, too, whether those claims justify the Court's new approach to the Confrontation Clause. We will return to those questions later. For now I want to focus on the role that anti-inquisitorialism has played in the Court's overhaul of confrontation law. Several points are worth noting.

     First, the Court takes prosecution of a criminal defendant through the use of statements taken in his absence to be a signal feature of the inquisitorial system. The common law, Justice Scalia explains for the Court, "has long differed from conti-nental civil law" in this regard: "[t]he common law tradition is one of live testimony in court subject to adversarial testing,

    while the civil law condones examination in private by judicial officers." [FN115] Second, the Court interprets the Con-frontation Clause to be aimed first and foremost at blocking that sort of private testimony, and by implication the inqui-sitorial system more *1653 broadly: "the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused." [FN116] Third, linking the inquisitorial system with the use of statements taken in the defendant's absence does rhetorical work. It is

    not strictly necessary for the Court's historical argument: the Confrontation Clause could have been aimed at blocking the prosecutorial use of ex parte witness statements, regardless whether that practice is or was characteristic of the inquisitorial

    system. But linking unconfronted statements to civil law trials made confrontation part and parcel of our adversary system; the Supreme Court in Crawford and Davis "use[d] the perceived failings of the European 'inquisitorial' model to reinforce the legitimacy of its own approach." [FN117] Anti-inquisitorialism in Crawford and Davis thus helped free the Court from an obligation it otherwise might have felt--the obligation to explain just what it is about confrontation that merits consti-tutional protection.

     A brief digression is in order about two possible uses of purpose in constitutional adjudication. One use, which the Court rightly rejected in Crawford, deems a constitutional provision entirely inapplicable if its underlying purpose is satisfied in other ways. This is the line of thinking Justice Scalia presumably had in mind in Crawford when he quipped that "[d]ispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty." [FN118] Elsewhere the Court conceded that "the Clause's ultimate goal is to ensure relia-bility of evidence," but it reasoned, sensibly enough, that the clause commands "that reliability be assessed in a particular manner"--that is, through confrontation. [FN119] Constitutional provisions do not apply only when courts think they are truly needed--at least, they do not work that way under any approach to constitutional adjudication that today enjoys sig-nificant support.

     But there is another way that purpose can figure in constitutional interpretation: it can serve as a guide in resolving textual

    ambiguities. This use of purpose is uncontroversial, even among dyed-in-the-wool originalists. Take Justice Scalia's opi-nion for the Court in District of Columbia v. Heller, [FN120] striking down a local ban on handguns--an originalist decision if ever there was one. Justice Scalia made clear *1654 that eighteenth-century understandings governed the preliminary and

    long-debated question whether the Second Amendment conferred an individual right or simply a collective right connected to militia service. [FN121] But once the Court decided that the right in question was held by individuals, and was not dependent on any connection with a state militia, it had to determine whether a ban on handguns, but not on rifles or shotguns, amounted to an infringement of the right "to keep and bear Arms." [FN122] The text did not answer that ques-tion, and Justice Scalia did not pretend that it did. Instead, he stressed that a central purpose of the Second Amend-ment is to protect "the inherent right of self-defense," [FN123] and he noted that "the American people have considered the handgun to be the quintessential self-defense weapon." [FN124] That was what made "a complete prohibition" of handguns unconstitutional.

     Here is another example, closer to home. The Sixth Amendment gives criminal defendants a right to be tried by a "jury." [FN125] After the Supreme Court held this right to be "fundamental to the American scheme of justice," and therefore protected against the states by the Due Process Clause of the Fourteenth Amendment, [FN126] the Court had to decide what the term "jury" meant--in particular, whether a jury stopped being a jury when it had fewer than twelve members. Common law juries had twelve members, but was this size essential to the very idea of a jury or simply an accident of history? To answer this question, the Court looked to the purpose of jury trials, which it concluded was "to prevent op-pression by the Government" by requiring community participation in the determination of guilt or innocence and by applying the common sense of laypeople. [FN127] The issue thus was how large a jury was required in order "to promote group deliberation, free from outside attempts at intimidation, and to provide a fair possibility for obtaining a representative

    cross-section of the community." [FN128] The Court found no evidence that a jury of six was inadequate to fulfill these

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    functions, and therefore it held six-member juries constitutionally permissible. [FN129] Eight years later, though, the Court *1655 concluded that reducing the number of members to five or fewer unduly threatened the ability of a criminal jury to serve its historic purposes, so a panel of five or fewer members could not satisfy the jury right found in the Sixth Amendment. [FN130]

     This kind of appeal to purpose as a guide to constitutional interpretation is all but absent in Crawford, Davis, and Giles--as

    is any serious effort to identify the underlying point of confrontation. In Crawford the Court said in passing that the "ul-timate goal" of the Confrontation Clause is to ensure the reliability of evidence used against a criminal defendant, [FN131] but it also suggested that the aim of the clause is, at least in part, to protect against abuses of power in "politically charged"

    prosecutions. [FN132] And elsewhere Justice Scalia has led the Court in stressing the symbolic, dignitary interests pro-tected by the Confrontation Clause: the notion that there simply is "something deep in human nature that regards face-to-face confrontation between accused and accuser as 'essential to a fair trial in a criminal prosecution."' [FN133] The Court made no effort in Crawford, Davis, or Giles to synthesize or reconcile these purposes. It treated that task as unne-cessary: whatever the purpose of the Confrontation Clause, the Constitution had already determined how that purpose should be pursued. [FN134] As Roger Park has put it, confrontation seems to be the Court's bottom line: "the purpose of confrontation is confrontation." [FN135]

     The problem with this approach, as Professor Park points out, is that it has left the Court virtually without guidance in delineating the contours of the confrontation right and in defining the critical term "testimonial." [FN136] And that lack of guidance may go a long way toward explaining some of the Court's odd suggestions about what makes an out-of-court statement "testimonial" and therefore subject to the Confrontation Clause--including the counterintuitive idea that for-malities involved in taking a statement weigh in favor of treating the *1656 statement as testimonial, even when the for-

    malities seem to make the statement more reliable and less amenable to government manipulation. [FN137] Granting that formality makes a statement more like the evidence in Sir Walter Raleigh's case and more like the depositions taken by Marian magistrates, and granting even that these should be taken as the paradigmatic evils against which the Confrontation Clause takes aim, Professor Park is plainly right that "similarities that make no functional difference should not matter," [FN138] and that deciding which similarities make functional differences requires some reference to underlying goals.

     Strictly speaking, the Court's reluctance in Crawford, Davis, and Giles to examine the underlying purpose of confrontation did not depend on the connection Crawford drew between a lack of confrontation and inquisitorial justice. The Court could have detached the interpretation of the Confrontation Clause from the goals of the Clause without simultaneously linking the Clause to the adversary system. There was, in fact, little explicit discussion of the inquisitorial system in Davis [FN139]

    and even less in Giles. And rooting the confrontation right in a rejection of inquisitorial process, as the Court did in Crawford, might seem simply to reframe the kind of functional analysis required when giving content to the right: now the Court needs an account of what makes the inquisitorial system objectionable. As a practical matter, though, an-ti-inquisitorialism functioned in Crawford as a substitute for an inquiry into purpose. Once confrontation at trial was linked to a rejection of the inquisitorial system, its purpose standing alone seemed either self-evident or beside the point. Con-frontation was important because it was part of what distinguished "our" system from "theirs"--and their system was something "to be avoided at all costs." [FN140]

*1657 B. Anti-Inquisitorialism, Sentencing, and Juries

     Outside of the Confrontation Clause, the most dramatic development in constitutional criminal procedure over the past decade has been the Supreme Court's application of the Sixth Amendment jury right to invalidate a wide range of sen-tencing schemes, including the one that federal courts had used for nearly two decades. This series of cases began in 2000 with Apprendi v. New Jersey, [FN141] which struck down a state law authorizing sentencing enhancements for defendants that trial judges, not juries, determined had carried out hate crimes, and it culminated five years later in United States v. Booker, [FN142] which held the United States Sentencing Guidelines unconstitutional because they made a defendant's presumptive sentencing range depend on facts found by the judge, not by the jury. But the pivotal case in the series was Blakely v. Washington, decided the year before Booker. Blakely made clear the Apprendi principle applied to any sen-tencing scheme that made a defendant's maximum sentence depend on facts found by the judge rather than the jury--not just to schemes, like the one in Apprendi, that authorized judges to exceed what would otherwise be the maximum sentence fixed by statute for the defendant's offense. Before Blakely, it appeared possible that states could avoid violating Apprendi by setting the maximum penalty for every offense high enough to accommodate any enhancements authorized for facts found by the sentencing judge. After Blakely, that option was no longer available, and the writing was on the wall for the

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