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U.S. Supreme Court,
Constitutional Law,
Civil Litigation,
California Supreme Court

Nov. 17, 2021

Crawford today: Tasting great or less filling?

For several decades now, the federal and California courts have been debating -- blessedly, not to the point of fisticuffs -- the driving force animating the Sixth Amendment's confrontation clause: actual confrontation, or reliability?

2nd Appellate District, Division 2

Brian M. Hoffstadt

Associate Justice, California Court of Appeal

UCLA School of Law, 1995

For several decades now, Miller Lite has run ads depicting its consumers debating -- almost to the point of fisticuffs -- whether the driving force animating the alleged popularity of Miller Lite is that it "tastes great" or is instead "less filling."

Also for several decades now, the federal and California courts have been debating -- blessedly, not to the point of fisticuffs -- the driving force animating the Sixth Amendment's confrontation clause.

Crawford v. Washington, 541 U.S. 36 (2004) is the inflection point in this debate.

For nearly a quarter century prior to Crawford, the U.S. Supreme Court viewed the clause as chiefly concerned with "advanc[ing] 'the accuracy'" of jury verdicts by ensuring that the evidence presented to the jury was sufficiently reliable. Tennessee v. Street, 471 U.S. 409, 415 (1985). Under this view -- which was first fully embraced in Ohio v. Roberts, 448 U.S. 56 (1980) -- cross-examining the declarant of an out-of-court statement was the "preferred" method of assuring reliability, but cross-examination was deemed unnecessary if the statement had other "adequate indicia of reliability," either because it (1) fell within a firmly rooted hearsay exception or (2) otherwise bore "particularized guarantees of trustworthiness." Under Roberts and its progeny, the driving force animating the confrontation clause was reliability.

Crawford changed all that.

Based on a historical analysis and a deep mistrust of the competence and motives of judges in applying "amorphous notions of 'reliability,'" 541 U.S. at 61, 67, Crawford held that the clause was "a procedural rather than a substantive guarantee" that "commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination," Crawford, 541 U.S. at 61. To comport with its history-based rationale, Crawford narrowed the reach of the clause to only those out-of-court statements that qualify as "testimonial" (while leaving "for another day" what that meant), but made the clause's insistence upon cross-examination nigh absolute: Under Crawford, an out-of-court statement must be excluded if the declarant is not subject to cross-examination at trial unless (1) the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant, or (2) the statement was admissible at trial without cross-examination under the common law in effect at the time the Sixth Amendment was ratified. Id. at 53-54, 68 & n.6. As Crawford's rule makes clear, the driving force animating the confrontation clause is confrontation.

Indeed, in subsequently declining to make Crawford retroactive to persons whose criminal convictions were final because it was "unclear whether Crawford, on the whole, decreased or increased the number of unreliable out-of-court statements that may be admitted in criminal trials," Whorton v. Bockting, 549 U.S. 406, 420 (2007), the Supreme Court effectively acknowledged that Crawford sacrificed reliability at the altar of confrontation.

In the 17 years since Crawford was handed down, the sharp line of demarcation Crawford sought to draw between confrontation and reliability has started to blur.

The courts have yet to settle on a "comprehensive definition of the term 'testimonial,'" People v. Amezcua & Flores, 6 Cal. 5th 886, 912 (2019), but they have started filling in the blank space Crawford left there with reliability-based considerations.

In post-Crawford cases, the Supreme Court has held that whether an out-of-court statement is "testimonial" turns on whether (1) its "primary purpose" was "to establish or prove past events potentially relevant to later criminal prosecution" (and hence to "create[] an out-of-court substitute for trial testimony"), and (2) it was made in a more or less formal setting. Michigan v. Bryant, 562 U.S. 344, 358-59, 366 (2011); Davis v. Washington, 547 U.S. 813, 822 (2006); Ohio v. Clark, 576 U.S. 237, 244-45 (2015). In Bryant, the majority went so far as to hold that "[i]n making the primary purpose determination, standard rules of hearsay, designed to identify some statements as reliable, will be relevant." Bryant, 562 U.S. at 358-59.

The lower courts have taken the hint. Out-of-court statements made during casual conversations among people the declarant trusts -- such as statements to one's cell mate, coconspirator, or spouse (synonyms, if ever there were!) -- are not testimonial because the informal context in which those statements were made imparts a degree of reliability. People v. Dalton, 7 Cal. 5th 166, 208-09 (2019) (cellmates); People v. Clark, 63 Cal. 4th 522, 563-64 (2016) (coconspirators); People v. Gomez, 6 Cal. 5th 243, 297-98 (2018) (spouses). Along the same lines, out-of-court statements made by children to teachers are not testimonial because their informality and the absence of any police involvement make the statements more reliable. Clark, 546 U.S. at 246-47. Similarly, the factual observations regarding a decedent's body that a coroner puts in her notes are not testimonial while the coroner's conclusion about the cause of death is; this dichotomy rests on the notion that the coroner's more informal observational notes are more reliable. People v. Trujeque, 61 Cal. 4th 227, 276 (2015); People v. Leon, 61 Cal. 4th 569, 603 (2015).

The reincorporation of reliability concerns into post-Crawford law is precisely what Justice Antonin Scalia, Crawford's author and architect, feared -- and what he railed against in both Bryant and Clark. The Bryant majority's view that the reliability of a statement factored into whether it was testimonial was, in Justice Scalia's view, flat-out wrong because "[r]eliability tells us nothing about whether a statement is testimonial." Bryant, 562 U.S. at 392. By nevertheless weaving reliability back into the fabric of the clause, Scalia lamented, the court was "shoveling ... fresh dirt" upon the grave from which Crawford rescued the clause and leaving the "jurisprudence" defining the clause "in a shambles." Clark, 576 U.S. at 252; Bryant, 562 U.S. at 380.

Given these developments, for whom does the confrontation clause's heart beat? Is it true to Crawford and beats solely for confrontation? Or have its attentions strayed back to Roberts, such that it beats mostly for reliability with an occasional preference for confrontation?

The California Supreme Court sidled up to this question in In re I.C., 4 Cal. 5th 869 (2018).

At issue in I.C. was whether a young child's uncorroborated, out-of-court statement could supply sufficient evidence to sustain a finding that dependency jurisdiction was warranted due to the parent's sexual abuse. To answer that question, I.C. looked to its prior decision in In re Lucero L., 22 Cal. 4th 1227 (2000). The splintered opinions in Lucero L. collectively held that reliance on such hearsay was permissible as long as the child's out-of-court statement bore "special indicia of reliability," and Lucero L. borrowed this standard from Roberts. The Sixth Amendment's confrontation clause does not apply in juvenile dependency proceedings (which are civil in nature), In re Malinda S., 51 Cal. 3d 368, 383 n.16 (1990), but Lucero L.'s reliance on Roberts made some sense: Parents have a right to due process in dependency proceedings, id.; the chief concern of due process is assuring reliability, Graham v. Collins, 506 U.S. 461, 478 (1993); Heller v. Doe, 509 U.S. 312, 332 (1993); and Roberts, as noted above, viewed the confrontation clause as aimed primarily at that goal.

I.C. momentarily flirted with the question of whether Crawford had displaced Roberts as the bellwether for assessing the "substantive reliability" of evidence. I.C., 4 Cal. 5th at 889 n.6. If Crawford remains a confrontation-based doctrine, then Crawford would ostensibly have been of little help in defining the reliability-based due process standard at issue in I.C. But if Crawford has reverted to more of a reliability-based standard, then I.C. would have had had good reason to adopt Crawford as a bellwether. Ultimately, however, I.C. opted to leave that question for another day.

But that day may be coming.

In the last several months, the California Supreme Court granted review in People v. Gray, S269237. Gray presents the question whether Crawford remains a useful bellwether in defining the due process protections that apply in probation revocation hearings; as such, Gray may give us further insight into the current state of Crawford's soul. (I am also personally interested to know what the court does with Gray because I authored it.)

For now, we do not know whether the confrontation clause is more about confrontation or about reliability -- whether the clause, as the ads go, "tastes great" or is instead "less filling."

Although the rise of the craft beer industry may have implicitly answered the question that the driving force animating mass-produced diet beer is not "great taste," the driving force animating the confrontation clause in this post-Crawford era remains to be settled. 


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