Home | Business News | Browse by Publication | T | Trial

Confusion over confrontation.

Article Excerpt
In a combined case, Davis v. Washington and Hammon v. Indiana, the Supreme Court answered a tricky question about the Sixth Amendment's Confrontation Clause that had bedeviled the lower courts.' The issue was whether a 911 call (in Davis) and a police interview with a witness (in Hammon) were "testimonial." If so, then they couldn't be used at the defendants' trials without the witnesses testifying.

The Court, in an 8-1 decision written by Justice Antonin Scalia, concluded that the 911 call was not testimonial but the police interview was. (2) This ruling only furthers the confusion over the "testimonial/non-testimonial" dichotomy the Court created in its decision in Crawford v. Washington two years ago. (3)

In Crawford, a defendant's conviction for assault was based partly on a statement his wife made to police officers. She did not testify at trial. In striking down Crawford's conviction, the Court overruled Ohio v. Roberts, (4) which had found that hearsay statements did not violate the Confrontation Clause if they fell under a "firmly rooted hear-say exception" or had other "adequate indicia of reliability." (5) Applying Roberts, the state courts had admitted the wife's statement on the grounds that it appeared reliable because it corresponded closely to what the defendant had said. (6)

But in Crawford, the Supreme Court said that "reliability" was no longer the appropriate test; instead, courts must determine whether a statement is "testimonial."

Finding the framers' intent

The Confrontation Clause was intended to curb the use of evidence allegedly given to investigating magistrates by witnesses who did not appear at trial. (7) But the historical law the Court cites in Crawford supports only the proposition that no hearsay evidence could be used against a defendant. (8) This proposition runs counter to historical fact.

Indeed, the Crawford Court boldly declared--without any historical support--that "not all hearsay implicates the Sixth kanendment's core concerns.

An off-hand, overheard remark might...

View this article FREE - Now for a Limited Time, try Goliath Business News
Free for 3 Days!