In the world of criminal defense lawyers, one of the most significant positive changes coming from the Supremes has been the expansion (or re-expansion, according to your religion) of the Confrontation Clause.  Beginning with Scalia’s earth shattering Crawford decision in 2004 and culminating, at least for the moment, in this term’s decision in Melendez-Diaz v. Massachusetts.

What it means is that we get to cross-examine living, breathing people rather than pieces of paper or tapes, that say what they say and can’t be challenged.  Before that, the rule was that the Confrontation Clause was secondary to a “firmly rooted exception” to hearsay, an out of court statement offered for the truth of its contents.

What’s forgotten in the mix is that right to confront witnesses, worthy of inclusion in the 6th Amendment to the United States Constitution, wasn’t applicable to the states until Pointer v. Texas in 1965, when it was held to be so fundamental a right as to be worthy of incorporation under the 14th Amendment due process clause. 

David Bernstein at Volokh raises an interesting argument that Scalia’s originalist position on the Confrontation Clause, that it means what it says as it was understood in 1791 by the guys who passed it, may be baloney.  Not because the founders didn’t have such an understanding of confrontation, but because it quickly devolved to become another rule swallowed by its exception.  As an aside, a “firmly rooted hearsay exception” was whatever the court decided it to be, whether business records, excited utterance, etc.  The notion was that if the hearsay statement was deemed sufficiently reliable, the hearsay came in and the Confrontation Clause was forgotten.

The problem, per Bernstein, is that Scalia looked at the wrong Amendment in determining what the proper originalist understanding should be.  Rather than 1791, when the 6th was passed, he contends that the correct understanding should be that of 1868, when the 14th Amendment was passed, which gave rise to the incorporation doctrine.  At that point in time, when due process per the federal Constitution allowed for its rights to be passed along to the states, the Confrontation Clause was understood to be toothless, such that it was this relatively tepid right that was intended to be imposed upon the states, rather than the robust right originally passed.

Beyond the fact that I do not believe in the originalist view of constitutional interpretation, I nonetheless find Bernstein’s proposition wrong.  The passage of the 14th Amendment incorporation doctrine carried with it all the baggage of the bill of rights, as they were originally intended and as they had since developed.  To the extent one wants to pretend that we know what long-dead people had in mind, and further to the extent that we pretend that this large and diverse group of people were of identical motivation and understanding (a ridiculous notion, but one that serves as a foundation for the originalist perspective), they were well aware that the rights were subject to change, expansion, contraction and reinterpretation.  And still they passed the 14th, knowing that the past saw change and the future would as well. 

Of course, Bernstein’s proposition is purely academic, since the hard fact is that the Supremes have revitalized the Confrontation Clause to a great degree, although it’s “testimonial” versus “non-testimonial” distinction left the door open to much mischief and confusion, From the perspective of trying a case, the purpose of the creator of hearsay evidence, as well as his understanding of the use to which it would be put, has little relation to whether a defendant can mount an effective challenge to traditionally “reliable” hearsay which is nonetheless wrong.

To those who aren’t in the position of having to contest the substantive accuracy of a piece of paper or a tape recording, the enormity of the problem may not be apparent.  The fact is that people sometimes lie when they tell a story. Even if not lying, people can be mistaken.  It’s hardly an unusual thing.  When the font of testimony sits on the witness stand, we can question their senses, memory and comprehension abilities. 

When their evidence is reduced to a writing, it is fixed forever.  We can question whether the person actually wrote what was on the paper, or whether the paper was altered, but we cannot question whether the person who wrote the paper but is not before us at trial actually saw or comprehended what he says.  Ironically, it elevates human frailty to perfection, making it immune from challenge, no matter how wrong it may be.

If you’ve ever been forced to try a case where critical challenged facts are proven by evidence admitted via hearsay exception, you can appreciate how devastating this situation can be.  No matter how hard you stare at a piece of paper, the writing doesn’t change.  No matter how inaccurate the content of that writing may be, it remains a untouchable testament.  And if a defendant is entitled to due process, then Scalia’s interpretation of the Confrontation Clause returns a crucial right to its place in the due process arsenal.  Regardless of how we got back there, it’s clearly one of the best things to come out of the Supremes for the purpose of defending against false accusations.

What this issue should remind us, however, is how a constitutional right, with a relatively clear purpose well-grounded in reason and practice, gets muddled up over the years as court after court fashions facile exceptions until the rule is rendered meaningless.  Crawford was the exception, with the Court returning the rule to its roots.  What’s become of search and seizure under the 4th Amendment, for example, informs us of just how much damage courts can do over time. chipping away bit by bit until there is no rule left.