Confrontation Avoidance? Part I: A Good Article to Read While Waiting

Like nearly every criminal lawyer, I eagerly await – and wait and wait – for the Supreme Court’s long overdue decision in Melendez-Diaz v. Massachusetts (07-591), the only case outstanding from the Court’s November sitting (per SCOTUSBLOG).  The case addresses the prosecution’s use of crime laboratory reports against the accused without testimony by the person who performed the analysis and wrote the report.  We need not get bogged down in the constitutional niceties at present, if only because its delayed appearance renders the case’s auguries especially hard to read.

So while we wait for a case that is certain to affect a staggering percentage of criminal cases, both pending appeal and awaiting trial, I highly recommend J. Thomas Sullivan’s timely  article, Crawford, Retroactivity, and the Importance of Being Earnest, 92 Marq. L. Rev. 231 (Winter 2008).  To grossly oversimplify things, in 2004 the Supreme Court held its nose and unceremoniously dropped 25 years of case law (and countless law review articles) into law’s dumpster. The discarded doctrine loosely regulated the prosecution’s use of hearsay under the Sixth Amendment’s confrontation clause; its flaccid “reliability” approach had green lighted nearly all forms of hearsay imaginable (and then some).

Crawford v. Washington held instead that the framers had distinguished between “testimonial” and “nontestimonial” hearsay which are subject to vastly different conditions for admissibility. Without belaboring the history here, Crawford triggered seismic –no, tectonic – shifts in the use of hearsay evidence, a feature of every trial. The only glitch was that the Court did not share with us the meaning of “testimonial hearsay” or the reach of hinted-at exceptions for business records, coconspirator statements, or dying declarations.  Hence, we are on tenterhooks to see what comes of Melendez-Diaz.   

Sullivan’s article illuminates Crawford while addressing its impact on the thousands of prisoners convicted before 2004.  He approaches Crawford and the issue of retroactivity with insights based on practical experience and a scholar’s command of law. Sullivan, a law professor, represented a man (Earnest) who spent 24 years in prison before his conviction was overturned based on a retroactive application of Crawford.  The article places Earnest’s story in the context of the doctrinal turmoil that has marked the confrontation clause for decades.   

The article deftly weaves together three different threads.  First, there is the confrontation thread and the several false starts that preceded Crawford. Second, Justice Scalia’s majority opinion in Crawford clearly broke with prior, flawed precedent and unabashedly announced a new rule (though one ostensibly based on the confrontation clause’s history).  Crawford’s novel approach and fresh reading of history raised the issue of retroactivity, namely, who besides Crawford himself benefits from the clause’s rethinking?  In 2007 the Supreme Court unanimously held that Crawford is not retroactive, in accordance with its longstanding “Teague rule.”  In Seinfeldian terms, this meant “no soup for you” for the vast majority of those prisoners convicted prior to Crawford.

The third issue runs to the very core of federalism: What latitude do state courts have in retroactively applying “federal constitutional precedent more broadly than required by federal due process protections” (p. 236)?   In Danforth v. Minnesota (2008) the Supreme Court, according to Sullivan, afforded “states the option of formulating or applying retroactivity doctrines” that deviate from the federal approach in Teague (p. 300).  Sullivan underscores that thus far only New Mexico has fully availed itself of the discretion to apply Crawford retroactively more generously than does federal precedent, and it did so on behalf of his client Earnest. 

In sum, Sullivan’s article is at once an instructive case study, a helpful guide through difficult doctrine, and a template for postconviction litigation possibilities.  Should Melendez-Diaz break still more new doctrinal ground, as seems likely, Sullivan’s article will become all the more salient, particularly in litigating state criminal appeals.          

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