Law Review Comment Outline ACCOMPLICE CONFESSIONS AND THE CONFRONTATOIN CLAUSE: CRAWFORD V. WASHINGTON CONFRONTS PAST ISSUES WITH NEW RULE ***note: 2Ls, this year’s outline page range is 5-8 pages and this outline is only to give you an idea of what the outline may look like. I. Introduction A. Grab: Imagine being tried and convicted without the opportunity to confront the prosecution’s chief witness against you… B. Explanation of Sixth Amendment Confrontation Clause and the questions that the Court still needs to answer 1. custodial vs. non-custodial accomplice confessions 2. genuinely self-inculpatory, mixed, inter-locking 3. Do away with Roberts? 4. No defined factors for trustworthiness C. Crawford v. Washington—granted cert, will be argued this November 1. deals with a statement the defendant’s wife gave to authorities after D stabbed victim 2. wife’s statement inter-locks with defendant’s 3. On appeal, the defendant claims that admission of his wife’s statement violates the Sixth Amendment Confrontation Clause. 4. Raises Q not answered in by Court’s most recent confrontation case in Lilly v. Virginia: a. Do Truly Self-inculpatory and Inter-locking statements fall under firmly rooted prong? b. If not, do they carry particularized guarantees of trustworthiness? 1) what are the factors for trustworthiness c. If yes, under what circumstances will they be admitted? d. May answer other Qs left open in Lilly and other cases: 1) custodial/non-custodial distinction 2) do away with Roberts framework? II. History and Background of Confrontation Clause and Accomplice Confessions A. Sixteenth and Seventeenth Century English Criminal Prosecution 1. Certain formalized out-of-court testimonial material from other witnesses were admissible against a criminal defendant in lieu of live witnesses a. ex parte affidavits b. depositions c. testimony from other hearings or trials d. signed confessions 2. Problems: a. Sir Walter Raleigh’s trial
1) Sir Walter was convicted of High Treason, based on a written accusation by Cobham who refused to appear at trial where Sir Walter could cross-examine him. a) “Good my Lords, let my accuser come face to face, and be deposed…By this means you may have any man’s life in a week and I may be massacred by mere hearsay.” b. Statements not subject to adversarial testing c. Where the declarant is unavailable, he can’t be cross-examined and the trier of fact cannot observe his demeanor. B. U.S. Constitution and 6 th Amendment 1. “the accused shall enjoy the right to be confronted with the witnesses against him” 2. response to common law practice—Framer’s believed strongly in a criminal defendant’s right to confront his accuser 3. Court still firmly believes the Confrontation Clause is the foundation for the truth-seeking process C. Hearsay Law Development 1. Definition: a. Out-of-court statement offered by a litigant to prove what the statement asserts 2. Confrontation clause principles codified in statutory hearsay laws: a. generally inadmissible in any civil or criminal trial, but for exceptions 3. Hearsay and Confrontation Clause protect similar values a. trustworthiness of the evidence b. adversarial testing of the statements and the witness in court 4. Rationale for exceptions a. some statements are made under circumstances that traditionally indicate the declarant’s presence in court and adversarial testing would add little or nothing to their trustworthiness 5. Examples of Exceptions in the Federal Rules of Evidence a. excited utterance b. dying declaration c. statements against penal interest 1) Rationale for this exception 2) History of this exception 6. Accomplice Confessions Admitted Against a Defendant Under an “Against Penal Interest” Exception to the Hearsay Rule a. Some jurisdictions allow accomplice statements against penal interest to be admitted against the defendant 1) states that admit accomplice confessions against a defendant 2) states that do not allow admission D. Mattox v. United States (1895)
1. Mattox was the first U.S. Supreme Court challenge to the constitutional guarantee of confrontation. a. Two key witnesses from the defendant’s first trial had died before the second trial and were thus unavailable for crossexamination. The prosecution sought to admit the witness’ testimony against the defendant. Court admitted the testimony in the second trial. b. Addressed the purpose of the confrontation clause: 1) protect the defendant’s opportunity to test the recollection, sift the conscience of the witness, and compel him to stand face to face with the jury so they may judge whether the witness is worthy of belief. c. Framers intended certain exceptions for public policy reasons: 1) i.e. dying declarations are inherently reliable 2) substance of the confrontation clause was present when the defendant already had an opportunity to confront the witnesses at the first trial E. Pointer v. Texas: (1965) 1. The Court held that the Confrontation Clause was incorporated by the Due Process Clause of the Fourteenth Amendment and is thus made applicable to and binding on the states. F. California v. Green: (1970) 1. The Court rejected the notion that “the Confrontation Clause is nothing more or less than a codification of the rules of hearsay and their exceptions as they existed historically at common law” G. Douglas v. Alabama: 1. The Court first recognized the need for exceptions to the hearsay rule in criminal prosecutions, but noted that the application of the “against penal interest exception posed problems in cases where the unavailable declarant implicated himself but also accused the defendant of the same or more serious crime. H. Bruton v. United States: 1. Joint trial of two defendants: Evans and Bruton. Evans invoked his 5 th Am. privilege, rendering him unavailable. When Evans confession was introduced through another witness, the trial court gave the jury a limiting instruction: state law made Evans confession, implicating Bruton in the robbery, inadmissible against Bruton, but admissible against Evans. 2. The Supreme Court held that the admission in a joint trial of a codefendant’s confession implicating the defendant violates the defendant’s confrontation rights even if a limiting instruction is given a. concern: jury can’t know if confession was truthful or an attempt to shift or spread blame (limiting instruction likely ineffective) b. admission of the co-defendant’s confession amounts to a de facto admission against the defendant.
1) side note: then why doesn’t de jure admission of an accomplice statement against a defendant violate the Confrontation Cause? 2) Bruton holding has been limited to joint trials. I. Ohio v. Roberts: (1980) Tied Confrontation Clause to Hearsay Rule 1. Two Requirements for hearsay to satisfy Confrontation Clause: a. Declarant Unavailable b. Adequate Indicia of Reliability: Two Prongs 1) Statement falls under a firmly rooted exception to the hearsay rule 2) OR statement carries particularized guarantees of trustworthiness J. Lee v. Illinois: (1986) 1. Involved a joint trial where co-defendant’s statement “inter-locked” with the defendant’s confession. 2. Court used Roberts to conclude that accomplice statements in general are presumptively suspect and in this case the circumstances surrounding the statement did not provide an adequate indicia of reliability to overcome that presumption. 3. Court further stated that a confession is not necessarily rendered reliable simply because some of the facts it contains “inter-lock” with the facts in the defendant’s statement. 4. Established that co-defendant’s statement implicating a defendant is presumptively unreliable and violates the defendant’s confrontation rights. K. Idaho v. Wright: (1990) 1. no bootstrapping on the reliability of other corroborating evidence 2. how does this affect the use of a defendant’s inter-locking confession to establish reliability of an accomplice confession? L. White v. Illinois: (1992) 1. Court tried again to clarify its interpretation of hearsay exceptions under the confrontation clause 2. Rejected argument that Confrontation Clause requirements should be limited to formalized testimonial material. (“steered a middle course”) 3. Firmly rooted: over time, courts recognize that statements’ context provide trustworthiness 4. Thomas: concurring—limit CC application to formal testimonial evidence from people and to people who actually testify at trial a. original intent approach M. Williamson v. United States: 1. Involved the “against penal interest” exception to the Federal Rules of Evidence Hearsay Rule 2. Plurality? Court held that only truly self-inculpatory portions of an accomplice statement were admissible against a criminal defendant. a. collateral neutral statements inadmissible b. exculpatory statements inadmissible c. suggests statements should be redacted to satisfy this exception
3. Did not reach confrontation clause question, because admission of accomplice statement violated FREs III. Current State of the Law A. Impact of Precedent: 1. What these cases established: A Summary a. certain hearsay violates a defendant’s right of confrontation; certain hearsay does not 1) Examples b. The muddled mess regarding accomplice confessions 1) two lines of cases can’t be reconciled 2. Questions left open: a. The doctrine established by this case law is neither complete nor settled. b. The Court has not yet considered every kind of hearsay evidence. c. The Justices don’t always agree on: 1) Scope of Confrontation Clause/Hearsay decisions 2) Explanations for these decisions d. Whether accomplice confessions satisfy Confrontation Clause requirements. 1) If so, firmly rooted? 2) If not firmly rooted, then particularized guarantees of trustworthiness? e. How to treat accomplice confessions and under what circumstances B. Lilly v. Virginia (1999): 1. *note: not sure how much the Court will rely on this decision vs. specifically addressing Crawford’s inter-locking confessions, but since the inter-locking exception is based on state case law, Lilly is likely more influential on the Court 2. Plurality opinion that did not establish concrete law or analysis on the relationship between the confrontation clause and the hearsay rule. a. While its result was unanimous, because there was no majority on its explanations, the Court did not establish under what circumstances an accomplice confession might be admitted, if at all, and why. b. The make-up of the Court was the same in Lilly as it will be when it takes up the issue of accomplice confessions again in Crawford v. Washington. 1) Lilly is also the most recent Supreme Court case to address the Confrontation Clause and accomplice confessions issue, so it is a better indicator of how the law will develop through Crawford. c. Thus, a closer look at the facts of this case and the majority and concurring opinions of the different justices is instructive on how
each Justice will view and decide the issues in Crawford, which will ultimately shape the outcome and precedent of Crawford. 3. Facts: a. Mark Lilly and his brother, the defendant, were both involved in a crime spree involving multiple robberies and a heinous murder. While in custody, police officers informed Mark that he better “break family ties” or he would end up with a life sentence. Mark then told authorities that he was drunk during the robberies in which he participated, but implicated the defendant as the shooter of the murder victim. 4. Procedural History: a. In a separate trial, Mark’s custodial confession was introduced into evidence against the defendant. b. On appeal, the Virginia Supreme Court upheld the admission of this confession under the state’s “against penal interest exception” as a “firmly rooted” hearsay exception pursuant to the Roberts confrontation clause framework. 5. Breakdown of Different Opinions: a. Justice Stevens (opinion for the Court) 1) joined by Ginsburg, Souter, and Breyer 2) Accomplice confessions admitted against a defendant as statements against penal interest do not fall within a firmly rooted hearsay exception 3) Highly suspect, must analyze under second reliability prong of Roberts, but likely will never satisfy this prong. b. Chief Justice Rehnquist (concurring) 1) joined by O’Connor, Kennedy 2) Stevens opinion is too broad—amounts to per se ban on accomplice confessions 3) Court should wait to address whether a) private confessions satisfy firmly rooted prong b) genuinely self-inculpatory statements satisfy firmly rooted prong 4) Noted that accomplice confessions that shift blame and where the government is involved in their production are highly suspect c. Justice Scalia (concurring) 1) “paradigmatic violation” of the confrontation clause d. Justice Thomas (concurring) 1) Confrontation Clause is only implicated by formalized testimonial material a) affidavits, depositions, other trial and hearing testimony b) includes confessions i. thus the Confrontation Clause was implicated by Mark Lilly’s confession
e. Justice Breyer (concurring) 1) wrote to address groundswell of legal academia criticizing the Court’s tying Confrontation Clause to the hearsay rules 2) Roberts test is both too broad and too narrow 6. Analysis of Lilly’s Precedent: a. Majority on some issues, although still fragmented, indicate how the confrontation clause jurisprudence might further develop. 1) Eight justices discussed whether part or all of a custodial confession might be admissible under the second ground of Roberts a) but could not agree on how often such cases would appear 2) Five justices appeared to agree that even truly selfinculpatory parts of an accomplice confession would not be admitted under the “firmly rooted” prong of Roberts. a) but disagreement on the reasoning for this. 3) All nine justices appeared to agree that the rule for private confessions should not be the rule for custodial confessions. a) but there were not specific proposals on what this rule should be. b. Moreover, the Plurality Opinion indicated that any changes in Confrontation Clause jurisprudence will be consistent with precedent (which is why I think Lilly is important to Crawford) 7. Questions that Lilly Raised and May be Answered in Crawford a. The Court has not yet defined the factors of trustworthiness under the second prong of Roberts. 1) leaves little direction for courts trying to interpret Lilly’s impact b. The Court must still address whether there is a distinction between custodial and non-custodial confessions 1) Private confessions: a) Will they still come under the “firmly rooted prong”? b) Stevens’ opinion indicates that all accomplice confessions will be analyzed under the second Roberts prong c) Rehnquist’s opinion indicates he believes that private confessions (those to friends or family) are trustworthy enough to come under a firmly rooted penal interest exception. 2) Custodial Confessions: a) Per se exclusion on custodial accomplice confessions?
b) Stevens’ opinion indicates that Lilly did not institute a complete ban. c) Rehnquist indicated that Stevens’ holding is so broad that it amounts to a per se ban. d) Both opinions acknowledged that custodial confessions are highly suspect—likely not trustworthy 3) Non-custodial confessions where police are still interrogating a) Both Scalia and Rehnquist indicated that where the government is involved in the production of the statements, then the statements are highly suspect. b) Thus, these statements likely treated as custodial confessions. c) However, the concerns of blame-shifting and currying favor with the authorities are not always present. 4) Lower Appellate Courts on Custodial/Non-Custodial Issue After Lilly. a) Inconsistent application by the lower courts— some even declining to follow Lilly. b) discuss line of cases from Syracuse L. Rev. c. The Court must address whether truly self-inculpatory statements (a sub-set of the penal interest hearsay exception) are admissible, if ever, and under what prong of Roberts. 1) Facts of Lilly involved a statement that shifted responsibility for the murder to the defendant. a) Arguably largely self-exculpatory, even though Mark Lilly implicated himself in the robberies and by the felony murder rule would be equally culpable for the murder. 2) Stevens, with his broad ruling that accomplice confessions against a defendant were not “firmly rooted,” indicated that even genuinely self-inculpatory statements would never be admitted under the firmly rooted prong. 3) Rehnquist would not go that far: indicated that Lilly, by its facts, did not raise the question of whether truly selfinculpatory or inter-locking statements were admissible under the “firmly rooted” prong.—hole in the law for Crawford 4) Appellate Court answers/non-answers to truly selfinculpatory question a) discuss line of cases from Syracuse L. Rev. C. Crawford v. Washington: 1. Facts:
a. The defendant was charged with attempted first-degree murder for stabbing the victim who allegedly made sexual advances on the defendant’s wife. Authorities arrested both Crawford and his wife Sylvia and interrogated Sylvia, who was present during the stabbing. Her statement of the event was almost entirely consistent with her husband’s. The main distinguishing factor in these statements was that Crawford alluded that the victim may have had something in his hand when Crawford stabbed him, but Sylvia implied that the victim may have grabbed for something after Crawford stabbed him. 2. Procedural History: a. Sylvia’s statement was admitted at trial against Crawford under the state’s “against penal interest exception to the hearsay rule” and he was convicted. b. On appeal to the Washington State appellate court, the conviction was overturned because the court did not find adequate indicia of reliability. c. On appeal to the Washington State Supreme Court, the Court analyzed the admission of Sylvia’s statements under the Roberts framework: 1) The Court held, under its own case law that statements against penal interest were not firmly rooted exceptions. 2) Under state case law only those portions of Sylvia’s statements were truly self-inculpatory were admissible a) the court concluded her entire statement was against penal interest under an accomplice liability theory even though it tended to shift blame to Crawford. (similar to Lilly, but different reasoning) 3) The court then determined that Sylvia’s statements fell within the state’s case law rule that “inter-locking” confessions were presumptively reliable, and thus met the 2nd prong of Roberts. Thus there was not Confrontation Clause violation. d. The Supreme Court granted cert in June 2003 to decide whether to re-evaluate Roberts regarding custodial accomplice confessions and whether “inter-locking” accomplice confessions violate a defendant’s confrontation rights. 3. Issues on Appeal to the Supreme Court: a. Custodial vs. Private Confessions 1) Perhaps addressed, but since Sylvia’s confession was not private, it may be a non-issue since it is not distinct from Lilly. b. Fashion a rule that allows the prosecution to use accomplice confessions that is workable and produces results consistent with the Court’s confrontation clause doctrine 1) Court may just reaffirm Robert 2-prong test
2) Or modify Roberts with respect to accomplice confessions a) define a subset of the penal interest exception that fits within the firmly rooted prong b) and/or set forth “trustworthiness” factors for lower courts to use in applying Roberts second prong c) or establish a per se ban on accomplice confessions as against a criminal defendant 3) Or do away with Roberts altogether and establish a more workable rule that is not tied so closely to the hearsay rules and provides a better foundation for confrontation doctrine a) addressing some of the issues raised by Justice Breyer in Lilly b) adopting the arguments of Petitioner in Crawford c. The rule that the court fashions, affirms, or refines is key to how it will analyze the admission of inter-locking accomplice confessions against criminal defendants d. Inter-locking Statements: Important Issue in Crawford 1) The fact that an accomplice’s confession “inter-locks” or fairly matches up with a defendant’s confession is an alternative ground for admission. 2) Only Rehnquist brought up the issue of these types of statements and hinted that that they would be admissible against a defendant. 3) Admission of Inter-locking statements will be a larger issue in Crawford because the Court is likely to characterize the accomplice confession in that case as such. 4) History of the Inter-locking Confession a) See Crawford briefs 5) Making the Determination of Inter-locking: a) Definition of “Inter-locking”: What is truly “inter-locking”? i. discuss how the defendants’ and wife’s statements differed in Crawford ii. analyze comparable appellate court cases (a) Rehnquist cites one in Lilly b) Analyze: Who makes the determination that an accomplice statement “inter-locks” with a defendant’s confession? c) Analyze: Is an “inter-locking” statement a separate category of confessions from “truly selfinculpatory” and those that are considered exculpatory? 6) These statements carry their own unique “trustworthiness” issues:
a) inter-locking statements can still spread or shift blame b) however, they are corroborated by the defendant’s own story 7) Redaction: Do we take the statement as a whole? a) This issue was not addressed in Lilly and not addressed by appeals decisions following Lilly. b) Williamson provides guidance, although it was analyzed in the context of the FRE’s against penal interest exception. c) Discuss how much context of the statement matters. i. do we just exact portions of a narrative? ii. can we refine sentences? omit D’s name? iii. Is the true meaning of the statement undermined, altered with redaction? IV. Conclusion: A. Potential Implications of Crawford: 1. This section will largely depend upon how the Court rules in Crawford. Because there are so many different ways the Court could come out, I will likely limit my analysis to the actual results and the specific alternatives, if any, that I believe would have produced a better result. 2. Probable Implication Issues for discussion: a. If Roberts is superseded, refined—how that affects confrontation doctrine generally 1) what guidance does Crawford give lower courts 2) impact on statutory “against penal interest” exceptions to the hearsay rule b. Effect of admission/exclusion of inter-locking accomplice confessions on 1) Prosecution a) strengthen/weaken their ability to present probative evidence 2) Defendants: a) affect on confrontation and due process rights (strengthened/weakened) c. Effect of Crawford holding on admission/exclusion of other types of hearsay B. Questions Left Unanswered: 1. What issues the Court will need to address in future cases. a. fact-patterns that might make the issue ripe for discussion 2. Where the lower courts are still lacking guidance.