Justice Alito Calls for Limiting the Confrontation Clause to Live Witnesses

In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court found that that the Confrontation Clause of the U.S. Constitution is violated when hearsay is “testimonial,” admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant’s trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. The Court in Crawford set forth various formulations of the term “testimonial,” with the most commonly adopted one defining a “testimonial” statement as one that “was made under circumstances which would lead an objectively reasonable declarant to believe or anticipate that the statement would be available for use against an accused at a later trial.” Since Crawford, the Supreme Court has issued various opinions fleshing out exactly what is meant by “testimonial.”

But, according to a statement by Justice Alito today regarding the Supreme Court’s decision to deny certiorari in Franklin v. New York, the Confrontation Clause should only be considered in connection with live witnesses at trial and should not cover “testimonial” statements by non-testifying witnesses.

Specifically, Alito wrote the following:

I agree that we should not grant certiorari in this case, but in an appropriate case we should reconsider the interpretation of the Confrontation Clause that the Court adopted in Crawford v. Washington, 541 U. S. 36 (2004), and has elaborated in later cases. Overturning established precedent, the Crawford Court claimed that its new interpretation captured the original meaning of the Confrontation Clause as revealed by then-recent scholarship, id., at 60–61, and that this interpretation would avoid the “unpredictable and inconsistent” results that had occurred under the test it overturned, id., at 66.

Subsequent developments have undermined these two pillars of Crawford’s rationale. Historical research now calls into question Crawford’s understanding of the relevant common law rules at the time of the adoption of the Sixth Amendment, and whatever else may be said about that decision, there can be no dispute that it has not produced predictable and consistent results. Despite repeated attempts to explain what Crawford meant by “testimonial statements,” our Confrontation Clause jurisprudence continues to confound courts, attorneys, and commentators.

Petitioner asks us to remedy this confusion by clarifying what qualifies as a “testimonial statement” under our postCrawford case law. See Smith v. Arizona, 602 U. S. 779, 783–789, 799–802 (2024) (discussing our “varied formulations” of Crawford’s “testimonial inquiry”). But the real problem may be Crawford itself and its conclusion that the Confrontation Clause codified a well-established common law right against the use of any “testimonial” statement made out of court by a person who is available to testify and was not previously subject to cross-examination by the defendant. 541 U. S., at 68.

In order to reach this conclusion, the Court was required to hold that any person who makes a “testimonial” statement (whatever that means) is a “witness” within the meaning of the Confrontation Clause, but this gave the term “witness” a meaning that is radically different from its meaning in the neighboring Compulsory Process Clause and elsewhere in the Constitution. See A. Amar, Confrontation Clause First Principles: A Reply to Professor Friedman, 86 Geo. L. J. 1045, 1045–1047 (1998); A. Amar, Foreword: Sixth Amendment First Principles, 84 Geo. L. J. 641, 647 (1996).

The Compulsory Process Clause, which follows immediately after the Confrontation Clause, gives a defendant the right “to have compulsory process for obtaining witnesses in his favor.” Amdt. 6 (emphasis added). And it is clear that these “witnesses” are people who are subpoenaed to appear in court and testify. The Court has understood the Clauses’ neighboring references to “witnesses” as two sides of the same coin. See Washington v. Texas, 388 U. S. 14, 19 (1967) (“Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense”). After Crawford, however, only the Compulsory Process Clause’s “witnesses” are people who must appear in court and take the stand. When a law uses the same term more than once, we presume that the term means the same thing every time it is used. See A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 170 (2012). Thus, it is startling to hold that the term “witnesses” in two provisions separated by nothing but a semicolon have very different meanings.

Other provisions of the Constitution that use the term “witnesses” also refer to people who testify in court. The Treason Clause states that “[n]o Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.” Art. III, §3, cl. 1. This provision requires two live witnesses who take the stand. See M. Hale, Pleas of the Crown 262 (1694); J. Langbein, The Origins of Adversary Criminal Trial 238– 239 (2003); Amar, 86 Geo. L. J., at 1047.

These powerful textual arguments were known when Crawford was decided, but the Court dismissed them because its study of history led it to believe that the Confrontation Clause was meant to codify a well-established common law right against the introduction of a certain category of what we now call hearsay. More recent scholarship, however, casts doubt on key aspects of Crawford’s reasoning. 

Our body of constitutional decisions would be in perpetual turmoil if we reconsidered every decision resting on an interpretation of history that is subsequently challenged in the law reviews. But as both JUSTICE GORSUCH and I recognize, the current state of our Confrontation Clause jurisprudence is unstable and badly in need of repair. If we undertake that project, we should not limit our efforts to an attempt to shore up what may be a fundamentally unsound structure.

If we reconsider Crawford, as I think we should, the result might be a reaffirmation of Crawford or the adoption of an entirely different Confrontation Clause rule. But whatever the outcome might be, reconsideration is needed.

It’s kind of tough to address Alito’s argument because, as can be seen above,

These powerful textual arguments were known when Crawford was decided, but the Court dismissed them because its study of history led it to believe that the Confrontation Clause was meant to codify a well-established common law right against the introduction of a certain category of what we now call hearsay. More recent scholarship, however, casts doubt on key aspects of Crawford’s reasoning. 

So, Justice Alito notes the study of history in Crawford but then notes recent scholarship questioning the Crawford Court’s reasoning without explaining which arguments from that scholarship he sees as compelling.

One thing that is clear is that limiting the Confrontation Clause to live witnesses would significantly circumscribe the rights of criminal defendants. To use one example, imagine that there’s an altercation between a victim and a defendant, with the defendant being arrested, followed by a still startled eyewitness making a formal statement at the police station within thirty minutes after the altercation. Under Crawford, the victim’s statement would almost certainly be seen as “testimonial,” making it inadmissible unless the eyewitness testifies at trial or the defendant was previously able to cross-examine her. Conversely, if Crawford only covered live witnesses, the eyewitness’s statement would likely be admissible against the defendant as an excited utterance, with the Confrontation Clause providing no obstacle to admission of the statement even without the eyewitness testifying at trial.

-CM