Constitutional Evasion and the Confrontation Puzzle

Abstract

Among the most notable developments in contemporary constitutional law is the breakdown of Confrontation Clause jurisprudence following the Supreme Court's 2004 decision in Crawford v. Washington. The Clause provides that in all criminal prosecutions, the accused "shall be entitled to be confronted with the witnesses against him." Overruling twenty-four years of precedent that equated the Clause with the statutory hearsay rule, Crawford promised doctrine that faithfully applied the Sixth Amendment's original meaning, was simple to administer, and protected criminal defendants against convictions secured through suspect evidence. Post-Crawford caselaw instead has delivered what Justice Scalia, the author of the Crawford decision, acknowledges as a "shambles."

Existing scholarship attributes the failure of contemporary Confrontation Clause jurisprudence to the Supreme Court's embrace of originalism, flaws in the Court's historiography, and the Court's disregard for Crawford's principles in subsequent cases. This Article argues that Crawford's failure instead reflects an unsuccessful attempt to regulate evasion of the Confrontation Clause. Though justified on originalist grounds, the rule of Crawford, holding that "testimonial" evidence triggers a right to confront the responsible "witness," is best understood as an attempt to regulate governmental evasion of the basic confrontation right. The need for doctrine that performs this function results from the transformation in the understanding of evidence between the framing and the present day. At the framing, jurists and lawyers generally understood "evidence" as the testimony of witnesses. Today, "evidence" includes an array of material other than witness testimony. Crawford's testimonial rule responds to the government's ability to evade the Confrontation Clause through the use of non-witness evidence by expanding the Clause to all "testimonial" evidence. The Court, however, did not acknowledge the need to regulate evasion of the basic confrontation right. Nor did it grapple with important questions a legal policymaker regulating evasion of the law must address. Indeed, Crawford stymied serious analysis of how to regulate evasion of the Confrontation Clause by suggesting that "evasive" evidentiary practices could be identified by interpreting the Clause's text — a mode of interpretation incapable of performing that task.

This account makes three contributions. Most immediately, it suggests a reorientation of confrontation doctrine that would permit the Court to overcome the divisions and theoretical uncertainty that plague post-Crawford jurisprudence. More broadly, the Crawford experience suggests a decision tree for courts asked to regulate other activities that seemingly involve the evasion of constitutional norms, which promises to improve the effectiveness and legitimacy of doctrine that regulates constitutional evasion. More broadly still, the account contributes new data to the long-running debate between theorists who believe it is useful and theoretically coherent to distinguish between doctrine that interprets the Constitution's textual meaning and doctrine which implements that meaning, and theorists who deny that such a distinction can be drawn. The breakdown of contemporary confrontation doctrine suggests that, in the context of regulating constitutional evasion, such a distinction exists and is important to the development of judicially administrable doctrine.

Keywords: Sixth Amendment, Confrontation Clause, Crawford v Washington, evasion

JEL Classification: K14, K40, K42