Mississippi College Law Review Volume 21 Issue 1 Vol. 21 Iss. 1 Article 8 2002 Interpreting the Confrontation Clause: is There Dissension Among the Ranks - Lilly v. Virginia Kimberly G. Gore Follow this and additional works at: https://dc.law.mc.edu/lawreview Part of the Law Commons Custom Citation 21 Miss. C. L. Rev. 83 (2001-2002) This Case Note is brought to you for free and open access by MC Law Digital Commons. It has been accepted for inclusion in Mississippi College Law Review by an authorized editor of MC Law Digital Commons. For more information, please contact [email protected]. INTERPRETING THE CONFRONTATION CLAUSE: Is THERE DISSENSION AMONG THE RANKS? Lilly v. Virginia 119 S.Ct. 1887 (1999) Kimberly G. Gore I. INTRODUCTION The right of an accused to confront witnesses against him has ancient roots. The Hebrews recognized the right of the accused to hear testimony given against him.' The Romans also allowed the accused to confront witnesses in person before conviction and sentencing Likewise, early English courts also recog- nized confrontation rights by allowing written questions to be given to witnesses.' The development of the confrontation doctrine in England faltered throughout the sixteenth and seventeenth centuries." Some courts refused to allow con- frontation rights to the accused.' Other courts only allowed the accused to con- front witnesses in felony cases.' Often, politics interfered with procedure, and the right to confrontation was discarded in many treason cases.7 In America, the right to confrontation developed quickly because of the adver- sarial approach to criminal procedure adopted by the colonies.' Also, as England attempted to regulate the colonies and the American Revolution approached, the right to confront accusers became more crucial; the colonists wanted desperately to avoid the abuses that were occurring in sixteenth century England.' The Framers emphasized the confrontation right by placing it within the Bill of Rights, establishing the confrontation right as a constitutional protection." Under the Sixth Amendment, "[i]n all criminal prosecutions, the accused shall enjoy the right to... be confronted with the witnesses against him."" Although the Confrontation Clause is a constitutional right and not an evidentiary standard, it often intertwines with the hearsay doctrine. Both the Confrontation Clause and the hearsay doctrine "stem from the same roots"' 2 and "protect similar values." 3 The main purpose of the Confrontation Clause is "to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing [cross-exam- ination] in the context of an adversary proceeding before the trier of fact."' 4 1. Amicus Br., 1998 WL 901782 at *4 (1998). 2. Id. at "5. 3. Id 4. Id at *5-8. 5. Id at *7. 6. Id 7. Id. The Crown often used criminal law procedures to control its adversaries. The treason cases in Stuart and Tudor England are good examples of how the right to confrontation was disregarded. Id. 8. Id. at *10. 9. ld. at *10-11. 10. U.S. Const. amend. VI. 11. Id. 12. Dutton v. Evans, 400 U.S. 74, 86 (1970). 13. California v. Green, 399 U.S. 149, 155 (1970). 14. Maryland v. Craig, 497 U.S. 836, 845 (1990). MISSISSIPPI COLLEGE LAW REVIEW [VOL. 21:83 Similarly, the hearsay doctrine excludes out-of-court statements because they are presumptively unreliable and cannot be tested by cross-examination, "the greatest legal engine ever invented for the discovery of truth."1 With time, though, courts and legislatures have carved out many exceptions to the hearsay rule. Where the reli- ability of hearsay statements is sufficient and will not increase with cross-examina- tion, hearsay statements are admissible. This similarity of purpose has resulted in a weaving together of the two doc- trines. The Confrontation Clause requires a higher standard of reliability; hearsay statements may fall within a hearsay exception yet still violate the Confrontation Clause. In Mattox v. United States,6 the Supreme Court first held that certain types of hearsay statements were compatible with the Confrontation Clause. Since the decision in Mattox, courts have increased the range of hearsay statements that meet Confrontation Clause standards, changing Confrontation Clause analysis into more of a hearsay reliability test than a constitutional safe- guard. The Supreme Court's decision in Ohio v. Roberts," in particular, opened the door to a hearsay analysis for Confrontation Clause issues. Now it appears that the pendulum may be swinging in the opposite direction, moving away from a hearsay reliability test and back to a constitutional safeguard analysis. Lilly v. Virginia 8 highlighted the split in the Supreme Court's Confrontation Clause analysis. In Lilly, the Court unanimously agreed that admission of an accomplice's confession against the defendant violated the defen- dant's Confrontation Clause rights. 9 The plurality opinion adhered strongly to the Ohio v. Roberts test, but three of the four concurring opinions strongly sug- gested that a hearsay analysis could not effectively solve Confrontation Clause issues. II. SUPREME COURT PRECEDENT - INTERPRETING THE CONFRONTATION CLAUSE Because both doctrines rely heavily on cross-examination, the United States Supreme Court must regularly define the parameters of the Confrontation Clause as it relates to the hearsay doctrine. Hearsay evidence may fall within an exception yet still be excluded under the Confrontation Clause, because the accused is denied the right to cross-examine the declarant. In these situations, the courts must decide whether the hearsay evidence is reliable enough to satisfy the heightened standard of the Confrontation Clause. The following cases demonstrate that the Confrontation Clause is not absolute-it has been expanded and contracted by the Supreme Court over the years to accommodate the various interpretations adopted by the members of the Court. 1. Mattox v. United States2 0 Mattox was charged with and convicted of murder.21 On appeal, the conviction 15. Green, 399 U.S. at 158. 16. 156 U.S. 237 (1895). 17. 448 U.S. 56 (1980). 18. 119 S. Ct. 1887 (1999). 19. Id.at 1901. 20. 156 U.S. 237 (1895). 21. Id. 2001] INTERPRETING THE CONFRONTATION CLAUSE was reversed, and the case was remanded for a new trial.2" Before the new trial, two of the most important prosecutorial witnesses died. 3 These two witnesses had testified at the first trial and were subjected to both direct examination and cross-examination." At the second trial, the testimony of these two witnesses was read into the record from the first trial transcript over the defendant's objec- tions.25 The defendant was convicted again of murder.25 Mattox also appealed the second conviction, claiming that admission of the deceased witnesses' testi- mony violated his rights under the Confrontation Clause.27 The United States Supreme Court upheld the admission of the testimony of the two deceased witnesses.28 Justice Brown, writing for the Court, first stated that all states regularly admitted the former testimony of deceased witnesses as evi- dence. 9 Justice Brown also stated that over a dozen state supreme courts had examined whether admission of former testimony of deceased witnesses violated the Confrontation Clause." Those courts unanimously admitted the former testi- mony, holding that "the right of cross-examination having once been exercised, it was no hardship upon the defendant to allow the testimony of the deceased witness to be read."31 The Supreme Court agreed. 2 The Confrontation Clause's primary objective, according to Justice Brown, was to prevent ex parte affidavits or depositions from being admitted in lieu of live testimony.3 Live testimony, particularly cross-examination, served several purposes: 1) to test the recollection of a witness, 2) to "sift[] the conscience" of a witness, and 3) to give the jury an opportunity to test the witness' credibility by observing his demeanor.3 For these reasons, live testimony is preferable to all out-of-court statements. However, general rules of law of this kind,... must occasionally give way to considera- tions of public policy and the necessities of the case. To say that a criminal, after having once been convicted by the testimony of a certain witness, should go scot free simply because death has closed the mouth of that witness, would be carrying his constitutional protection to an unwarrantable extent.3 The Confrontation Clause, according to Justice Brown, was not absolute. 6 The substance of the Confrontation Clause had been preserved because Mattox had previously cross-examined the witnesses under oath.37 Nothing in the wording of 22. Id. 23. Id. at 240. 24. Id. 25. Id. 26. Id. at 238. 27. Id. 28. Id. at 250. 29. Id. at 240-41. 30. Id.at 242. 31. Id 32. Id. at 244. 33. Id. at 242. 34. Id. 35. Id. at 243. 36. Id.at 244. 37. Id. MISSISSIPPI COLLEGE LAW REVIEW [VOL. 21:83 the Confrontation Clause granted Mattox the right of repeated cross-examination.' The former testimony, therefore, satisfied the Confrontation Clause; Mattox's con- 39 stitutional rights were not violated by admission of the former testimony. Justice Brown, in his opinion, never mentioned that the testimony of the two deceased witnesses was hearsay evidence. However, the admission of former testimony of deceased witnesses is now a codified hearsay exception.4" Mattox v. United States, therefore, was the first Supreme Court case to admit hearsay evi- dence against a claim under the Confrontation Clause. The next significant interpretation of the Confrontation Clause was set forth in Douglas v. Alabama."1 2. Douglas v. Alabama42 Douglas was on trial for assault with intent to murder."3 His accomplice, Loyd, had already been tried separately and convicted." At Douglas' trial, the Solicitor called Loyd to the stand; Loyd invoked his Fifth Amendment right against self-incrimination and refused to answer any questions." The prosecutor was allowed to treat Loyd as a hostile witness.