Articles
NOTE: A PROPOSED NEW APPROACH TO CONFRONTATION
Charles Nesson, Fern Nesson , Eric D. Green, Peter L. Murray
Modern evidence law begins with the decision to switch the responsibility for coming to a verdict at trial from the king and the clergy to the jury. With the jury as the designated body responsible for issuing a just verdict, the trial judge assumes two different judicial duties in managing a fair trial. One is to determine if the prosecution has presented a case that meets the legal requirements for submission for verdict to the jury. Another is to rule on objections to the admissibility of evidence to be heard by the jury.
The first of these duties involves the question of the sufficiency of the evidence to support the verdict. The second has to do with whether each bit of proffered evidence should be admitted for consideration by the jury. The first kind of judicial determination usually takes place after all of the prosecution evidence has been presented, but before the case is considered by the jury as the ultimate finder of fact. The second takes place at the time each separate piece of evidence is offered.
The conceptual premise of criminal jury trial procedure is that the jury is able do justice because it has the capacity to determine the credibility of witnesses who appear before them. You may doubt the validity of this assumption as a matter of actual human psychological skill, yet it is key to the legal structure of a criminal trial.
It follows from this premise that the jury's capacity to come to a conclusion beyond reasonable doubt must be based upon witnesses whose credibility they can judge. For the necessary credibility judgment to be made, witnesses who can testify from first hand knowledge about the crime must testify on direct and submit to cross-examination in the presence of the jury.
It is our submission that the issue of confrontation guaranteed by the Sixth Amendment of the Constitution relates to whether the prosecution has called sufficient witnesses with personal knowledge to satisfy its burden of proving each element of a criminal offense beyond a reasonable doubt. The issue is one of legal sufficiency: is there enough first-hand, personal knowledge testimony from witnesses who appear at trial to warrant submission of the prosecution case to the jury? Understood properly, confrontation is a rule of production, requiring that the prosecution prove a prima facie case with personal knowledge witnesses. It is a not simply a rule of admissibility involving hearsay and its exceptions.
The Supreme Court has been erroneously conflating 'confrontation' with 'cross-examination' ever since 1895, when the Court decided its first confrontation case, Mattox v. United States. Generations of Supreme Court justices have mistaken the function of constitutional 'confrontation' to be a rule about the admissibility of hearsay protecting the defendant’s right to exclude un-cross-examined evidence. This conflation causes conceptual confusion that has plagued courts’ attempts to distinguish the Sixth Amendment confrontation right from the rule against hearsay.
Unlike hearsay, confrontation is not a rule of admissibility; it is a rule of production that mandates live witness testimony as the primary mode of proof in criminal trials. Affirmatively, confrontation requires the production of witnesses so that a jury may assess their credibility and come to a verdict of guilt beyond reasonable doubt. The Sixth Amendment does not require the exclusion of otherwise permissible hearsay if it is used only to corroborate direct knowledge testimony.
Put another way, confrontation requires the presence of direct-knowledge witnesses to accuse; its concern is not for improperly admitted hearsay evidence but rather for the quality of the body of evidence that remains as the basis for jury verdict. Raleigh's call at his trial in 1603 (prior to the establishment of the right to counsel and its concomitant right to cross-examination) -- “Bring Cobham before my face!” - - was for this fundamental procedural right of production of witnesses in a fair criminal jury trial. "If you proceed to condemn me by bare inferences, without an oath, without a subscription, without witnesses, upon a paper accusation, you try me by the Spanish inquisition." (Jardine 419). Raleigh’s execution after his unfair trial impressed Americans with the need to instantiate a confrontation right in every state constitution and they included it as fundamental in the Sixth Amendment of our Bill of Rights.
The text of Confrontation Clause, which responds to Raleigh’s cry, articulates “the right to be confronted with the witnesses against” the defendant, not (as the Supreme court has often misstated it) the right to confront witnesses through cross-examination.
The Supreme Court has attempted to delineate the proper reach of the Confrontation Clause beginning in 1895 in Maddox v. United States but controversy surrounding its interpretation persists. Each time the Court has revisited the issue -- Pointer v. Texas (1963), Ohio v. Roberts (1981), Crawford v. Washington (2004), Davis v. Washington, (2006) Ohio v. Clark (2015) -- the results have caused further controversy and uncertainty.
The reason is clear. No interpretation of the clause as a rule of admissibility works as a constitutional principle. The Clause must be defined separately from the rules of hearsay. Neither 'testimonial' nor 'unreliable' nor any other standard for excluding an item of evidence from the body of evidence submitted to the jury gives any assurance whatever of the integrity of what remains. Raleigh's cry was for dismissal of the prosecution for lack of first-hand testimony by a witness, not for the exclusion of any other item of proof.
We believe that asserting a clear meaning of 'confrontation' in relation to 'hearsay'' is the right starting place to grasp a subject which has given rise to a very confused jurisprudence of many courts, including the United States Supreme Court. Of course, you must read and assess the meaning and implications of the Supreme Court opinions for yourself to understand both the law and the state of its present confusion.
But before diving into the morass of United States Supreme Court confrontation cases, review the description at the beginning of Chapter 5 of the celebrated trial in 1603 of Sir Walter Raleigh for conspiracy to commit treason.2
Questions:
1)What is the basis of Raleigh’s objection?
Raleigh demanded that Cobham be produced live in court to testify against him. He was counting on his belief that Cobham would refuse to accuse him in sworn testimony in court and, instead, would disavow his affidavit. Lord Coke's refusal to produce Cobham meant that the only proof against Raleigh was hearsay.
2) Without Cobham’s testimony, what evidence was introduced at trial to prove Raleigh’s guilt? On what basis could the jury do its work?
The absence of a live accuser and the substitution of hearsay left the jurors with no way to test the credibility of Cobham. With their power to test credibility so limited, how could they reach a conviction beyond a reasonable doubt?
Both Raleigh and history record the resulting verdict as an infamous injustice. Raleigh was sent to the gallows based only on hearsay and the public was left with a verdict open to grave doubt of its validity.
The fundamental injustice in Raleigh's trial lay in the failure of his prosecutors to produce any live witness to accuse him in court. It was the insufficiency of the totality of the evidence presented that rankles, not the admission of any particular hearsay statement. The lesson of Raleigh’s case is plain: a defendant should not be convicted unless the prosecution produces witnesses with personal knowledge who appear in court to testify to the elements of his offense. Conviction beyond reasonable doubt cannot rest on hearsay alone.
If the prosecution is permitted to substitute out-of-court statements for in-court accusations, the defendant is not confronted and the jury is hamstrung in doing its job of assessing credibility. And we, who are not present in court, cannot trust its verdict. With no one present or willing to swear before the defendant and the jury that Raleigh was a traitor, we can never be convinced that his execution was fair.
3) Would Raleigh’s case be less compelling if the state failed to produce Cobham but offered additional “reliable” hearsay?
Properly understood, the injustice of Raleigh’s trial can be cured only by production of a live witness at trial. It cannot be cured by substituting "good" hearsay, however reliable the state may consider it to be. Even if the hearsay is in the form of a sworn affidavit or had been previously cross-examined in another forum, the use of an out-of-court statement to prove an essential element of the offense falls short of the requirement that the defendant be confronted with (and that the jury see) the witnesses against him accuse him and be tested. Without a live witness who has first-hand knowledge, the jury cannot assess credibility.
4) Suppose Dyer, instead of his hearsay report, had given sworn testimony based on his own personal knowledge of Raleigh's involvement in the alleged conspiracy. Would Raleigh still have had an unfair trial? Would he have a valid 'confrontation' objection, as opposed to a hearsay objection, to the admissibility of Cobham's confession?
The outrage created by the injustice done to Raleigh is reflected in the inclusion of a 'confrontation clause' in constitutions of all the original states and in the Sixth Amendment to our national Constitution. The Confrontation Clause declares that in all criminal prosecutions, the accused shall enjoy the right "to be confronted with the witnesses against him.
2 A transcript of Raleigh's trial is available online at < https://mathewlyons.wordpress.com/2011/11/18/the-trial-of-sir-walter-ralegh-a-transcript/>.