A policeman's lot, as Sir William Gilbert remarked long ago, is not a happy one. The Supreme Court made the policeman's lot even unhappier two years ago with its unanimous decision in Crawford v. Washington. Maybe some relief is now in sight.
The Crawford case involved a reinterpretation of the Sixth Amendment to the Constitution. To refresh your memory, it reads in relevant part: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him."
As a matter of constitutional law, what is "a confrontation"? It depends. In 1999 Michael Crawford was charged with stabbing Kenneth Lee. The facts are murky, as they so often are, but apparently Crawford thought Lee had raped his wife, Sylvia. Skip the facts. On the night of the fracas, Sylvia told the cops, on tape, some incriminating things she quickly regretted. After her husband was indicted, she refused to testify against him. For want of her "testimonial" evidence, the disappointed prosecutor offered the tape. Over the defendant's objection, it was admitted.
A jury convicted Crawford of assault, and the state Supreme Court affirmed. In March 2004, the U.S. Supreme Court reversed. In a nominally unanimous opinion by Justice Antonin Scalia, the high court held that by offering the tape alone, the state had deprived the defense of an opportunity to cross-examine, i.e. to confront.
All nine justices agreed that the Crawford case must be sent back, but Chief Justice William Rehnquist and Justice Sandra Day O'Connor dissented on the law even as they affirmed on the facts. Rehnquist said, prophetically, that Scalia's opinion for the court "casts a mantle of uncertainty over future trials." Thousands of federal prosecutors and "tens of thousands of state prosecutors," he said, need answers to the problems created by the majority.
Those answers may be forthcoming before the high court's current term ends in late June. Two parallel cases, one from Washington state, the other from Indiana, already have been granted review. The former asks whether statements made to a 911 operator during an emergency are admissible. The latter, more conventionally, has to do with statements made to investigating officers in response to questions that routinely are asked as detectives go to work.
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