Constitutional Evasion and the Confrontation Puzzle

Abstract

One of the most notable developments in contemporary constitutional law is the breakdown of jurisprudence interpreting the Sixth Amendment’s Confrontation Clause following the U.S. Supreme Court’s 2004 decision in Crawford v. Washington. There, the Court promised doctrine that faithfully applied the Clause’s original meaning, was simple to administer, and protected criminal defendants against convictions secured through suspect evidence. Post-Crawford case law has not delivered on these promises. This Article argues that Crawford’s failure reflects an unsuccessful attempt to regulate evasion of the Confrontation Clause. Though justified by the Court on originalist grounds, the rule of Crawford, holding that “testimonial” evidence triggers a right to confront the responsible “witness,” is best understood as an attempt to regulate governmental evasion of the basic Sixth Amendment right to confront witnesses who give live testimony in legal proceedings. The need for doctrine that performs this function results from the transformation in evidence between the framing and present day. The Crawford Court, however, did not acknowledge the need to regulate evasion of the basic confrontation right, nor did it grapple with important policy questions a legal policymaker regulating evasion of the law must address. This account: (1) suggests a reorientation of confrontation doctrine that would permit the Court to overcome the uncertainty that plagues post-Crawford jurisprudence; (2) suggests a decision tree for courts considering whether and how to regulate seemingly evasive activities; and (3) contributes new data to the long-running debate between “pragmatist” and “doctrinalist” scholars over the utility of identifying a separate category of doctrine that implements constitutional norms as opposed to elaborating the Constitution’s textual and historical meaning.