Can a defendant be denied the right to confront witnesses?

The Supreme Court Monday considers whether certain exceptions to the Sixth Amendment are permissible.

It isn't often that lawyers arguing before the US Supreme Court reach back 400 years for a case upon which to frame a modern-day legal dispute.

Indeed, the US Constitution is only half that old.

But that is what is happening in a potential landmark case set for oral argument Monday involving the Sixth Amendment right of an accused criminal to confront witnesses against him.

Although Crawford v. Washington deals with the trial of Michael Crawford for a 1999 knife attack in Washington State, his lawyers' legal briefs take the justices all the way back to 1603 England and the treason trial of Sir Walter Raleigh.

There was no star witness to testify against Sir Walter. Rather, the primary proof was a written statement obtained from a Raleigh friend being held and apparently tortured in the Tower of London.

Raleigh knew his friend had since recanted. "Let my accuser come face to face, and be deposed," Raleigh demanded.

The prosecutor and judges refused. The law permitted written statements alone as evidence. Thus was Raleigh convicted and sentenced to death.

Now, four centuries later, the US Supreme Court is being asked to consider whether the great lesson of the infamous Raleigh trial is being lost in an American justice system increasingly granting exceptions to the constitutional right of the accused to confront witnesses against them.

Asking for bright line

Lawyers for Mr. Crawford are asking the justices to establish a bright-line rule that all testimonial statements offered against criminal defendants be subject to cross-examination or barred as evidence at trial.

They call into question a series of court-authorized exceptions to the Sixth Amendment's confrontation clause - exceptions that permit the introduction at trial of hearsay statements that the court itself determines to be so truthful as to not warrant the test of cross-examination.

"It allows courts to invoke reasoning strikingly reminiscent of Raleigh's judges in order to admit incriminating statements that lie at the heart of the evil to which the confrontation clause is directed," says Crawford's appointed counsel, Jeffrey Fisher, in his brief to the court. "The right to confrontation is a categorical requirement that the government prove its case through live testimony that is subject to cross-examination."

Prosecutors in Thurston County, Washington, who handled the Crawford case disagree. "The confrontation clause was not meant to eliminate all hearsay statements against a defendant. Some hearsay statements are sufficiently reliable so that adversarial testing is not required," says John Michael Jones, senior deputy prosecuting attorney, in his brief to the court.

US Solicitor General Theodore Olson is also urging the justices to reject a bright-line constitutional rule. "The categorical approach urged by petitioner, by excluding from trial even the most reliable and probative testimonial hearsay, would unduly encroach on the truth-seeking function and the associated interest in convicting those guilty of crime," his brief says.

In the Crawford case, the central issue is whether Crawford's wife, Sylvia, could be used as a key "witness" for the prosecution at his trial.

Prosecutors are barred from forcing a wife or husband to testify against a spouse, so they were unable to compel her to physically testify in court. Instead, they presented her "testimony" to the jury by introducing into evidence a transcript and tape recording of a statement she had made to police shortly after the stabbing.

Like Raleigh, Crawford and his attorneys were unable to cross-examine a transcript or tape recording. Mrs. Crawford's statement helped convict her husband. He was sentenced to 14-1/2 years in prison.

On appeal, his lawyers argued that the introduction at trial of his wife's statement violated his Sixth Amendment right to confront witnesses against him. The Washington Supreme Court ruled that because Mrs. Crawford's statement was very similar to a statement given to police by Mr.

Crawford, it was most likely truthful and could be presented as evidence.

Supreme Court precedents

Whether the high court is prepared to embrace a bright-line approach to the confrontation clause is unclear. Three justices, Stephen Breyer, Antonin Scalia, and Clarence Thomas, have suggested in written comments in earlier cases that they might support a categorical approach.

But in 1999, the last time the court took up a similar case, the justices produced a highly splintered decision. Yet since then, they have issued two key Sixth Amendment opinions that may have opened the way for a major ruling in the current case. In both earlier cases, the court acted to restore to juries certain functions that had been assigned by lawmakers to judges.

If a majority of justices view the Crawford case in similar terms, the decision could be one for the history books.

Richard Friedman, a professor at the University of Michigan Law School and a confrontation-clause expert, is hopeful. He says, "There is nothing in the [Constitution's] text that talks about hearsay, or reliability, or exceptions to the principle."

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