1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 v.

IN THE SUPREME COURT OF THE UNITED STATES - - - - - - - - - - - - - - - -X MICHAEL D. CRAWFORD, Petitioner : : : : No. 02-9410

WASHINGTON.

- - - - - - - - - - - - - - - -X Washington, D.C. Monday, November 10, 2003 The above-entitled matter came on for oral

argument before 10:56 a.m. APPEARANCES:

the Supreme Court of the United States at

JEFFREY L. FISHER, ESQ., Seattle, Washington; on behalf of the Petitioner. MICHAEL R. DREEBEN, ESQ., Deputy Solicitor General, Department of Justice, Washington, D.C.; on behalf of the United States, as amicus curiae. STEVEN C. SHERMAN, ESQ., Senior Deputy Prosecuting Attorney, Olympia, Washington; on behalf of the Respondent.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ORAL ARGUMENT OF

C O N T E N T S PAGE

JEFFREY L. FISHER, ESQ. On behalf of the Petitioner MICHAEL R. DREEBEN, ESQ. On behalf of the United States, as amicus curiae STEVEN C. SHERMAN, ESQ. On behalf of the Respondent REBUTTAL ARGUMENT OF JEFFREY L. FISHER, ESQ. On behalf of the Petitioner 54 36 23 3

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P R O C E E D I N G S (10:56 a.m.) CHIEF JUSTICE REHNQUIST: We'll hear argument

next in No. 02-9410, Michael D. Crawford v. Washington. Mr. Fisher. ORAL ARGUMENT OF JEFFREY L. FISHER ON BEHALF OF THE PETITIONER MR. FISHER: Thank you, Mr. Chief Justice, and

may it please the Court: The Confrontation Clause prohibited the

admission of the accomplice's custodial statement here for two reasons: first, because its interlocking reliability under this nature did

not establish its

Court's Roberts

jurisprudence; and second, and more fundamentally, because the accomplice's custodial court testimony that was statement amounted to never submitted to out-ofcross-

examination, in violation of the traditional understanding of the right to confrontation. QUESTION: When you say out-of-court testimony,

Mr. Fisher, what do you mean by the word testimony? MR. FISHER: giving What I mean, out Mr. Chief Justice, is court that is the

a statement

of

functional

equivalent

of what

they

would do

in court,

which is to say they're giving the authorities a statement that is describing an event in a way that they understand

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is going to be used in a criminal investigation. QUESTION: to the -So it may -it -- the -- it applies but not to a

if it's made

to the authorities

third person? MR. FISHER: be the dividing line. QUESTION: MR. Why is that? Well, because the Confrontation Ordinarily that's the -- that would

FISHER:

Clause, to go back to the text and to start with the text, talks about and being a witness against somebody. of that And the -give a in a

the common understanding that you understand

term is to

statement

is going

to be used

criminal investigation, and when you're giving a statement to the authorities, here a different a custodial statement to the

police, that's

situation than

the ordinary,

everyday occurrence of speaking to a friend or a colleague or something. QUESTION: But your ultimate criterion is was it it would or probably be

made with the understanding that used for prosecutorial purposes. MR. FISHER: term witness against

That's the way in the

I read the

-- the the

Constitution.

It's

gateway to the Confrontation Clause. QUESTION: investigator -So in a an auto serious

Yes, Justice Souter. accident, a accident. private Private

it's

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investigators for both of the parties come out and make -and make notes testimonial? MR. FISHER: QUESTION: it's -MR. that's going FISHER: of Well, I mean, I -- I think that is not The private -and of what the witnesses said. Is -- is that

It's a later criminal proceeding

the kind

a statement

that ordinarily

to be testimonial.

You know, an auto accident -- I

take it you're -- you're talking about an auto accident in terms of a criminal case. QUESTION: Well, But -it's -- it's an auto accident

and insurance investigators are all over the scene when it later turns into a criminal case. MR. situation FISHER: I mean, be that's the kind of a

that

there could

a difficult

question in be

something like that, but I think that is likely not to testimonial. QUESTION: QUESTION: Well, it's -What about if the -- what

about a

police officer who does the same thing? MR. FISHER: I think the police officer

certainly tips the balance and talking to a police

certainly when somebody is that's the kind of a

officer,

statement they understand is going to be used in court.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 -- what as you

QUESTION: suggest it

Well, if -- if we're going to change, your brief, does to using bring this any term great

in

testimonial, certainty,

certainly

not

does it, if you say something tips the balance Obviously, you're going to get a lot

one way or another? of close cases. MR.

FISHER:

Well,

I

understand,

Mr.

Chief

Justice, there are going to be some close cases out on the margins, and I acknowledge that. approach does is it covers But what the testimonial that

the core cases, the ones

the Confrontation Clause has always been concerned with. And really, it's not so the testimonial much a new test. What up

approach does is

really sum

what this Court itself did and bringing that under in

in interpreting the common law the umbrella and of the Sixth

Amendment

starting

Kirby

Mattox,

the

Court's

earliest decisions on the Confrontation Clause, really all the way up through Douglas in the 1960's where actually in that very custodial opinion the Court uses confession -the the term to uses the describe a term the a

Court

equivalent of

testimony.

And so

that's the

kind of

situation we're talking about to -QUESTION: QUESTION: When you -But you -- you -- your proposal would

effect a significant change in doctrine, I guess, from the

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Roberts case, and I think even under your proposal certain testimonial defendant, contributed forth. MR. FISHER: QUESTION: I Well, the -mean, you -- you would still have statements would for to instance, making the be admissible against the defendant the has so

where witness

unavailable and

some testimonial statements in there. Tell me which decision, would have of our come cases, since the Roberts your

out differently

under

proposed approach. MR. FISHER: I don't think, Your Honor, any

cases since Roberts. QUESTION: No case. Nor any case before Roberts.

MR. FISHER: QUESTION: MR. getting it that the a

Then why change? Because the lower courts aren't and I think

FISHER:

right, Chief

Justice Rehnquist,

problem is, is that the Roberts approach sets up is both unworkable in practice And I and is think

framework that

leading to consistently it's -QUESTION:

anomalous results.

Idaho

would have -- v.

Wright would

have come out the same way because the doctor who took the statements of the child was acting at the request of the

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police? MR. FISHER: of the case, That's how I understand the facts was in

Justice Kennedy.

The victim was --

police custody in

at the time of the examination, and it was with the police. So, yes, Idaho v.

coordination as well

Wright,

as all this

Court's other

cases, would

come out. But it's important, you know, to go back question and say, you know, why to the if And

change from Roberts

we've gotten to the right places in -- in our cases. the answer is, you know, certainly this Court

may never

have to change from Roberts, way that should The -QUESTION: function courts in part?

but simply understanding the

Roberts is working in the lower courts I believe this -cause the Court great concern.

cause

But isn't -We occasionally out

isn't that our

-- our

take cases from lower Presumably

to

straighten

misconceptions.

that's how these things get worked out. MR. FISHER: That's correct, Justice O'Connor,

but, you know, I would submit that you're going to have to practically fill your docket with Confrontation Clause

cases doing error correction in in all these cases. QUESTION:

order to come out correct

Well, we've --

but we've had Roberts

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for 23 years, and we

certainly haven't filled our

docket

with Confrontation Clause cases. MR. FISHER: Well, that's right. And that's --

and -- and what's happened, because you haven't done that, is the lower courts are reaching some very, very bad

results. about

I was responding

to Justice O'Connor's question if we're getting to the

why change

from Roberts

right solution, and the reason is because the way that the test is courts. gathered framed, it just simply is unworkable in the lower As 20 we cited in our brief, there are -using we for

factors

that

lower

courts are

indicia of reliability. The

We could have listed 40 or 50.

United States is asking you, as well as the with this -- stick with this reliability

State, to stick

approach for all of its faults.

And you know, the -- the

ironic thing with that kind of a -- of -- of a position is the more testimonial it is, and in turn -QUESTION: Before you give the reasons, I -I the statement is, the more reliable

want to go back to what you said. be functional equivalent is a little

You say the test should The functional law professors in be,

of testimony.

equivalent

vague, and the

their amicus brief would a

suggest that

the question should position of

reasonable person

in the

declarant for

anticipate that

the statement

would likely

be used

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evidentiary purposes?

Would you accept that as a -- a -of the question, or do do you think if we simply you did say

would you adopt that phrasing have a follow different your

phrasing, or the

approach,

opinion

should

functional equivalent? MR. FISHER: you don't have Well, first of all, Justice Breyer, too far into that in this case

to get

because, of course -QUESTION: I realize bit No, no. But I mean it's true that -perhaps we could do If a little -if we

that, but -- but than say

better

just testimonial.

accepted your approach -MR. FISHER: QUESTION: opinion on that. here. I think --so I'm -- I'm -I want your

I mean, there -- we have several briefs

We have variations on the theme, and I want to know you think is the best or which is the

which variation worst.

I read you one of them. MR. FISHER: I think I agree with the starting And then

point of the functional equivalent of testimony. I think that the is law professors' test, test, and I

the reasonable -- I would

expectation,

a good

would

embellish that by saying that I think that what we have is 99 cases out of 100 that's going to be the situation that is the

I -- I believe the Chief Justice brought up, which

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-- somebody speaking to the

authorities in the course

of

the investigation of a crime,

somebody giving a statement

to the authorities or directing one to them. QUESTION: your category made is not Would there be anything that to whom the a fit in

where the person an officer,

statement is officer or

either

police

prosecutor? MR. reason -- I FISHER: I think there be a -may be, and the

think there may

a rare, rare

case,

Justice Ginsburg, hypotheticals.

in a scenario -- you know, come up with scenario might be somebody them to an

One possible

giving a statement to tell the police.

their friend and directing So, you know, simply

using

intermediary where we police, but -QUESTION: intent of

know the statement is

going to the

Why -- why

should it depend is that --

on the

the declarant?

I -- why

why does of

that make the

declarant a witness

within the meaning

the Confrontation Clause? police get -get the

I mean, suppose statement not let from

-- suppose the the declarant know that that would being

surreptitiously. they are, in

They do

-- let him That --

fact,

the police.

disqualify it under testimony?

the law

professors' test from

MR. FISHER:

Well, in that --

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QUESTION:

Because

he would not know

that this

was going to be used in court. MR. FISHER: Well, I mean, I think that's a

-- you know, and this is where the definitional I mean, because the other part of is a limitation on going all the State power,

problem gets difficult. the Confrontation Clause and it says --

you know,

way Blackstone, that So

it's a

limitation on

the State

molding statements

it's going to use later

in a criminal investigation.

if that kind of a situation were present where somebody is molding somebody's statement, I think that might be as

something the well. And to

Confrontation Clause is

concerned with

that say

goes

back

to

Justice may be,

Ginsburg's you know, in the

that, --

yes,

there

cases

difficult hypothetical

out

margin, but what

we have here is a

test that covers what before this

are the time-and-again

cases that are coming

Court and coming before the lower courts. QUESTION: QUESTION: dialogue with Well, but -Are you -- just -- just with the

Justice Scalia,

because I'm

interested in or the

the same problem, is it

the intent of the speaker

intent of the person taking the statement that would be -be more relevant in your view?

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MR. FISHER:

Well, certainly I -- I -- you know,

you don't have to decide that question in this case, but I think that if either one of them -QUESTION: Well, of course -- of course, we do.

-- I really object to saying, you know, just -We'll worry about it later. I

just don't worry about it. mean, if there are real

problems that come up later,

I'm

not going to buy your -- your retreat from Roberts. MR. FISHER: I see, Your Honor. I think that

proper -- the proper test would be if -- if one of the two people is purpose criminal so -you know, is doing it's going something with to be the a I

of

understanding

used in

case, then we

have a testimonial

situation.

think you -- this Court could say that, but it -- you have to look back -QUESTION: You mean either the speaker or the

person taking the statement.

Is that what

you're saying?

I don't understand your response. MR. FISHER: I think certainly the speaker and I -- and this is -- this is

there may be situations

something the Court can deal with about when this -- about when the and --- when the governmental officer is the only one and is under such a circumstance that the a

governmental officer is

molding the

statement in such

way and molding what somebody is going to say --

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QUESTION:

Well, you know,

the concern we ought

to have with your approach is we're going to get into some very tricky questions if we go buy your route a pig in in deciding a poke, in

what's effect?

testimonial,

and why

MR. FISHER: as I said, if I submit

Well, the

first reason is because,

you have difficult cases out on the margin, Court the Constitution could tolerate

to the

that. QUESTION: thinking that Yes, but I think the professors there isn't difficult. I think they're

thinking it is the question of whether a reasonable person in the declarant's position would think it was likely that this was going to be used in testimony because if you look to the position of the police, you will suddenly find that tape recorded informant testimony of an ongoing and

conspiracy, while they're suddenly is kept out We wouldn't keep come in

planning to And

rob the bank,

of court.

there is no

reason. be --

it out of court

today.

It would So I

under the co-conspirator rule. words in this

think that it,

they wrote these

brief thinking about

and now if we're suddenly going to go and -- and open this all up to a whole bunch nervous about it too. MR. FISHER: No, I'm sorry, Mr. -- Justice of other things, I'd be a little

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Breyer. -- the correct

I may have misunderstood partially the suggestion hypothetical that I was that the traditional getting. kind of I think you're

co-conspirator would come in

statements

under that kind

of a situation

under either approach. to be

What I understood the hypothetical after a conspiracy

was a situation where somebody,

is done, is doing -QUESTION: It's your view that a co-conspirator

statement is not testimonial then? MR. FISHER: of events. I think that's the ordinary course

Yes, Justice Ginsburg. Well, why is that if it meets the

QUESTION:

test of a statement made to the police? MR. FISHER: Well, if there's an undercover -- you But it

officer present, it know, the test then I

meets -- it meets made to

the -- the

of a statement is where

the police.

think this

the law

professors have

right, and this is where I'm agreeing with Justice Breyer. QUESTION: automatically. conspirator because it's Not -you're right. if It's it's not

Under

the rule right in

today, the

a co-

statement, an ongoing

police

station, it

coverup conspiracy,

I guess

would come in.

But I think under the new rule, if in fact it is likely to be used

everybody in that room knows that

as a substitute for testimonial use at trial, it would not

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come in.

I think that's the point of the change. MR. FISHER: QUESTION: QUESTION: I think that's correct.

And -- and -Well, how -- how about a wire tap?

You've got a wire tap on -- on the or not? MR. FISHER: of co-conspirator

going, and you hear co-conspirators Is that testimonial

other end of the wire.

I think that's the traditional kind is not covered by the

statement that

testimonial approach. QUESTION:

And -- and I think --

And under your approach it would come It would not be testimonial. Is

in without difficulty.

that what you're saying? MR. FISHER: Without difficulty as to the

Confrontation Clause, yes, Justice O'Connor. And I think it's important when we look at these hypotheticals to when you compare what we have on the other side

look at the Roberts approach. matter how much -- you if

Under the Roberts know, if somebody ex

approach, no gives an

out-of-court affidavit,

somebody speaks

parte to a in the

grand jury, even if a witness

takes the stand

middle of a criminal trial --

in -- in a criminal

trial and puts blame directly for example, were you have to die or

on the defendant, and then, suddenly go where missing, under trial judge

Roberts

the situation

the

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doesn't

strike the

testimony, doesn't

disallow it,

but

looks to its reliability. And the getting to Solicitor thing odd thing -- and this is what I was

earlier. General

Compared to

what the State to you today,

and the the odd it comes that way

are proposing testimonial it

is the more

is, the more

under the core started

concern of

the Confrontation Clause and has moved all the

in Raleigh's the more

trial

forward --

testimonial it

is, the more

likely

it's pass -- it is to pass the Roberts test. QUESTION: Well, let's look at this very case

and tell me whether the result is any different at the end of the day under Roberts versus your test. MR. FISHER: not, Justice O'Connor. -you know, the I think Under the answer is absolutely

this Court's Wright opinion the lower court was --

rationale for

interlocking confessions. I'm sorry. only

Under this Court's Roberts opinion in Wright,

Under this Court's indicia

it is

the inherent

of reliability

surrounding a judge can

statement look to.

not other So -QUESTION:

evidence at

trial that a

And therefore?

I mean, relate it to

this case, if you would.

Tell me whether the result would very

differ under your proposal and under Roberts in this case. Why don't you focus on the statement and

tell us

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why it would or would not be different? MR. FISHER: It doesn't matter in this case,

Justice O'Connor, for two reasons. First of all, because under Wright, you cannot in order to assess the and that's what the

look to the defendant's confession reliability of Sylvia's statement,

Washington Supreme Court did. The that other -second reason is even if substantive that you could look to trial, several here was

to the

evidence at the

indicia

showed

statement

unreliable. been in

The -- the witness was drunk. during the events.

She said she'd She gave two

shock

inconsistent

statements within a 4-hour span.

She was in

police custody after being told told the officers as to whether leave. So

that it depended what she or not she'd be allow to

there are several, several

reasons to believe

that the statement here -QUESTION: Is it --- you know, is excludable under

MR. FISHER: both tests. QUESTION: MR.

Why is it excludable under your test? Well, under the testimonial

FISHER:

approach, Mr. Chief Justice? QUESTION: Yes. For the simple reason that she was

MR. FISHER:

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in custody giving a statement, giving a confession or a -or a custodial was going to examination to police officers be used in the criminal knowing it

investigation. --

That's the traditional -- it is

-- is the most common

it is the core concern of the Confrontation Clause. QUESTION: How -It brings us all the way back to

MR. FISHER: Raleigh's trial. QUESTION: or one of those

How about a statement like in Mancusi the witness is given prior

cases where

recorded testimony? examine. The

There's been an opportunity to crosspresently dead or unavailable.

witness is

Does that come in under your system? MR. FISHER: comes out exactly shows why my Yes, Mr. Chief Justice. Mancusi And this is

the same way, and here's why. -- why All the

test

testimonial approach

actually quite narrow. is the witness has to the witness. QUESTION:

the testimonial approach says cross-examine

have had a chance to

The defendant. If, when it comes time for trial --

MR. FISHER: I'm sorry? QUESTION:

The defendant. I'm sorry. The defendant has to

MR. FISHER: have had

a chance to cross-examine the witness.

If trial

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rolls around and fault of

the witness

is unavailable, through been adequate

no

the parties, as

and there's and

cross-

examination,

in Mancusi

actually as

in Roberts

itself -- and -- and I actually -QUESTION: not by somebody else. MR. FISHER: given in the Right. The statement with needs to be defendant Cross-examination by the defendant,

defendant's presence

the

himself having the opportunity to cross-examine. QUESTION: Inadi? MR. FISHER: QUESTION: No, I don't believe it does. you wouldn't have to say -- show Would -- would your approach overrule

So

that a particular declarant was unavailable. MR. FISHER: You would have to show that a

particular declarant is unavailable -QUESTION: MR. statement. Well, then --if it were a testimonial

FISHER:

What -- what -Well, then how about a spontaneous

QUESTION: declaration? MR.

FISHER:

Well,

that's the kind

of a thing

that's traditional hearsay. the phrase witness against.

It's

outside of the scope of

It's outside of the scope of

the testimonial approach.

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QUESTION:

So

it

would

come in

under

your

MR. FISHER: same way under -QUESTION: unavailability. MR. FISHER:

An excited

utterance comes out the

Without

--

without having

to show

Right.

It's just purely a hearsay

question, Justice -- Chief Justice Rehnquist. QUESTION: Because you say that's outside of the

Confrontation Clause entirely, not lumping all of hearsay. I thought your whole point is we don't want to lump all of hearsay under the Confrontation Clause. MR. FISHER: Justice -QUESTION: that before your on. But there's one aspect of this case me That's exactly right. I'm sorry,

time is up I

hope you can enlighten

The reason that

this witness is unavailable is

that

the defendant has

exercised his right to prevent his wife Is that correct? -it's close, Justice

from testifying against him. MR. FISHER:

It's

Washington law renders as a default rule that a unavailable to testify against another spouse.

Mr. Crawford here declined to waive that privilege. QUESTION: All right. But because he could have

not asserted that or not waived it, why doesn't that carry

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over

also?

Why

doesn't her

immunity -- his

control of

whether she the use of

can speak -- why doesn't that control as well the substitute for her testimony? If -if her

there is such a privilege, actual testimony in court

why doesn't it cover both and the substitute

for that

testimony? MR. FISHER: me as Well, I mean, I think you're asking As -- you know, as a State law

a Federal issue.

issue, Washington State law has decided that the second -that the out-of-court statement can come in. As a

Federal -QUESTION: it. MR. FISHER: As a -well, the reason -- you I just don't understand the logic of

don't understand the logic of the State law rule? QUESTION: keep her The State -- yes, to say that he can

off the stand, but he can't prevent a substitute

for -- for that statement -MR. FISHER: -it is I agree, Justice Ginsburg. rule. It is

a somewhat odd

State law

There's

a --

there's a case called State v.

Burden that the Washington

Supreme Court held that the marital privilege applies just to the -- just to actually facing your spouse on the stand in the course of a trial because your spouse avoid it -- you know, it helps of perjury and things

the possibility

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like that. statements.

And it

said it doesn't apply to

out-of-court

I think you could make a very strong argument

that it ought to apply to both, but as a State law matter, the Washington Supreme Court has said only in-court

testimony. Unless the Court has any further questions, I'll reserve the remainder of my time. QUESTION: Very well, Mr. Fisher.

Mr. Dreeben, we'll hear from you. ORAL ARGUMENT OF MICHAEL R. DREEBEN ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE MR. DREEBEN: Mr. Chief Justice, and may it

please the Court: If the Court reaches the second question

presented in this case, the United States submits that the Confrontation Clause limited should be properly construed and their to be

to testimonial

statements

functional

equivalent,

but it should not

be an absolute bar against

the admissibility of that kind of statement. QUESTION: Well, you kind of want it both ways. Has the Government taken a

It's kind of an odd position.

different position on the testimonial aspect in the past? MR. DREEBEN: No, Justice O'Connor. We took the

same position with respect to the limitation of the clause to testimonial statements in White v. Illinois, and this

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Court

rejected that

submission by

a 7

to

2 vote.

We

renewed it in

this case in light of the

Court's grant of which the

certiorari on the

second question presented in that this Court has Clause, but

petitioner's position is construed the

too broadly within its

Confrontation

compass, it should be given an absolute prohibition. QUESTION: I don't -- I don't understand. You

-- you say it's limited to testimonial statements. the clause is limited to testimonial statements. it is not absolute. MR. DREEBEN: QUESTION: That's correct.

The --

However,

Are there any

other provisions that

are in the Bill of Rights that are not absolute and can be overcome by the proof that the -- that the overall purpose of function is -is achieved? For

truth-serving

example, the right

to jury trial.

Do -- do we

approach a of

that by saying, oh, in jury would impede truth

a really complicated case where facilitate the finding Act case, yes,

rather than

like, you know,

a Sherman

it says

there's -- you're -- you're entitled to trial by jury, but the whole purpose of it is to achieve truth, and where the

that purpose wouldn't jury?

be served,

let's forget about

We don't say that, do we? MR. DREEBEN: QUESTION: No, Justice Scalia, but -why do we say it about the

Then

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Confrontation Clause?

And that

-- that's essentially the

Government's argument, that -MR. DREEBEN: Confrontation Clause -QUESTION: I know it has. -- in a variety of contexts. the issue here is whether The Court has said it about the

MR. DREEBEN: QUESTION:

And -- and

we -- we should retreat from those statements. MR. DREEBEN: Well, starting from the overall

structure of the Sixth Amendment, many of the rights in

the Court has construed Amendment not to be

the Sixth

absolute in certain contexts.

The jury trial

right does

not extend to all criminal prosecutions as the language of the Constitution would provide. It does not -- the right

to counsel does not extend to every criminal case in which a -arguably the text would require. The -the

Compulsory Process Clause has been held -QUESTION: limiting the the scope. That -- that's just a matter of

The right to counsel.

Do you have

right to counsel for, you know, at -- at every moment -during recesses in the trial and so forth?

during

That's -matter of

that's just a matter of the

scope of it, not a This is the the

saying, yes, this is within the scope. but we nonetheless will not

testimonial, command of

follow

-- of

the constitutional

provision that

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accused is entitled against him.

to be

confronted with the

witnesses

MR. DREEBEN:

What this Court has said about the

Confrontation Clause is that it incorporated a preexisting common law right and those common and being that had common law law exceptions along exceptions with it, growing

were capable of lines of

developed

the

analogous

principles. QUESTION: Growing and being developed so that

the -- the guarantee of confrontation is that in the future we'll -- we'll leave

just a guarantee it there if we

think it should be there. MR. DREEBEN: What helps to, confrontation who's who's It's not an absolute guarantee. at what witness

I think, explain involves. who is It

that is to look having a

involves

under oath,

subject to

cross-examination, who is

demeanor can be

observed by

the jury, and Now,

brought face has held in

to face with the a number of cases

accused.

this Court of those

that all or some

components of confrontation may be dispensed with when, in the necessities of the case and in order to obtain witness -- witnesses who will be able to testify at is required to do so. For example, in the instance of former the trial, it

testimony, you have oath, cross --

and cross-examination,

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and you the

have at one point the defendant face to face with but you do not have the important

witness,

confrontation right of the jury observe the demeanor of the

having the opportunity to And the Court held

witness.

that that is required because

the necessities of the case

require overcoming what would otherwise be a confrontation right. Similarly in that the literal Maryland v. Craig, the right to Court held the

face-to-face

confront

witness may be overcome by the necessities of the case. QUESTION: But then maybe your position is not

different from -- from theirs in this respect, if you take the law professors'. that it allows If you say, as you do in your brief, evidence in where the

testimonial

circumstances are such that they serve the same underlying purpose saying as the Confrontation Clause, thing that they then all you're

is the same

say here.

Will the

accused have had witness?

an adequate opportunity to words, like a

confront the trial. Is

In other

-- a prior

that all you're saying? MR. DREEBEN:

Because if that's so -No. It's definitely not what

we're saying, Justice Breyer. QUESTION: you're defining the No, it certainly isn't. You're --

underlying purpose much more

broadly

than the law professors.

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MR. DREEBEN:

We define the

underlying purpose

of the Confrontation Clause -QUESTION: are other indicia -QUESTION: QUESTION: Oh, achieve the truth. Yes. To serve the truth-seeking mission To achieve the truth. And if there

MR. DREEBEN:

QUESTION:

Sir Walter Raleigh -- if they came in

-- Sir Walter Raleigh -- in fact, it is shown that all the -the statements made out of court against Sir Walter

Raleigh were made in front of 12 bishops, and at that time that was a very, very good security that this was

completely true. and they, In -- in

Twelve bishops who saw the thing and -say, absolutely accurate. then come in in Sir

you know, go -- they your opinion,

that would

Walter Raleigh's own case. MR. DREEBEN: I doubt seriously that -- that Sir

Walter Raleigh's case would come out differently under our approach. What we are talking about -QUESTION: In other words, Sir Walter Raleigh -So you're

it came out that they did introduce this thing. saying if we take -- if we take -MR. DREEBEN: in The witnesses were case.

available, And our

Breyer,

Walter

Raleigh's

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position on

the availability

of witnesses

is that

when

they are available, they should be brought in. QUESTION: You would overrule Inadi then? Oh, definitely not, Mr. Chief

MR. DREEBEN: Justice.

Our view of Inadi is

that the statements of co-

conspirators made to each other out of court in connection with the -- with the conspiracy are almost invariably nontestimonial statements. There may be a few rare instances

in which the co-conspirators are continuing the conspiracy and speaking to law enforcement, the unlikely event those matter statements asserted and in that context, in

that the United States were coming in for the

submitted that truth of the

and not

because

they were

false, then But

perhaps there would be some issue about our approach. in the vast majority of cases -QUESTION: Well, what about in this

case?

There's a co-conspirator's statement. MR. DREEBEN: There was no suggestion in the

lower courts that these two individuals were attempting to further the conspiracy or that there was a conspiracy

going on at the time of the statements. QUESTION: Well, I was going to say there was no

conspiracy found, was there? MR. statements DREEBEN: admitted, That's -these -these Justice

were

Justice

Souter

and

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O'Connor, as statements

against penal interest.

And the

basis for the State court decision in letting them in -QUESTION: And not as a so-called interlocking

-- well, it was an interlocking -MR. DREEBEN: Clause -QUESTION: -- type of confession or something. The hearsay basis was statement Yes. The -- the Confrontation

MR. DREEBEN: against penal interests.

The confrontation argument that was that the meant of

was accepted by the Washington Supreme Court confession that it of Sylvia Crawford and

interlocked, which the

overlapped

paralleled

confession

Michael Crawford -QUESTION: But the Government doesn't endorse

that position, as I understand it. MR. DREEBEN: Justice Stevens. QUESTION: What is your position as to what We do not endorse that position,

should have happened with this statement? MR. DREEBEN: This statement should It have been think

excluded, Justice Kennedy. that under -QUESTION:

-- first of all, we

Under Roberts -Under Roberts --

MR. DREEBEN: QUESTION:

-- as well as --

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MR. DREEBEN: QUESTION:

That's correct.

-- this theory. Under Roberts, as explicated that serves in to

MR. DREEBEN: Wright,

corroborating evidence

show the reliability acceptable means of

of a particular statement vindicating its admission

is not an under the

Confrontation Clause. I can think of only two possible reasons why the confession of the defendant when it interlocks with the

statement made out of court

might be treated differently,

and neither of those arguments seems to me to be valid. One defendant's statement other would be if, as a factual matter, the

own statements

showed that degree not and I

the out-of-court found with think any that

was reliable

to a

corroborating

evidence,

don't

that's -QUESTION: Well, couldn't he be impeached with

his out-of-court statement? MR. DREEBEN: He certainly could and was

impeached with his out-of-court statements. And this brings Rehnquist. me to the second defendant can reason, Chief attack the

The

reliability of his own out-of-court bound by

confession.

He's not

some notion of estoppel that because he said it, be true. And the record in this case

therefore it must

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reflects

that Michael

Crawford

attempted

to present

a

self-defense at than the Crane

trial that was substantially

more robust And under

statements that he made at

the time.

v. Kentucky, this

Court has held

that a defendant So even sense

can attack the reliability of his own statements. if the statements did directly interlock,

in the

that the

defendant's statements matched

the out-of-court

declarant's statements, that would not reliable for confrontation purposes. QUESTION: oddest thing. defendant, assaulted he

render them per se

But they didn't match, and that's the

On the key thing, the most important to the suggested that the -the person he

had reached

for something before

the assault. was only

And her testimony -- or her statement is that it after the defendant assaulted the victim that I don't see how

the victim those could other

reached in -- in his pocket. be said to interlock.

They seem to clash with each

on the key point in the case. MR. point in DREEBEN: And -- and the State made that is

its rebuttal

argument.

So there

-- there

certainly ample basis

for saying that under

existing law

the statements do not come in. The question for revisit its Ohio concerns about the Court is should the Court of the was

v. Roberts jurisprudence because whether Ohio v. Roberts

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constitutionally accurate. QUESTION: Well, concerns by whom? Concerns that I think are -- are

MR. DREEBEN:

raised by reading the Confrontation

Clause as an original hearsay

matter before this Court's jurisprudence made all subject to the Confrontation Clause. Now, we do not submit need for the States Court has to revise not

that there is a practical its jurisprudence. a The

United

encountered

significantly hearsay

difficult burden in

admitting evidence under the

rules under the Roberts approach as -- as it articulated.

has now been

And we also acknowledge that the Court would

have to develop a jurisprudence to decide what testimonial statements approach. What we do submit is word witness against read is used in that the way in which in the the means, if the Court adopts the testimonial

Sixth Amendment, way the word

particularly when witness

light of

the

is used in

the Fifth

Amendment and also

in the

Sixth Amendment's Compulsory Process Clause, that the word witness was meant to refer to people who were giving

evidence for

purposes of a case, not to people who simply facts in the world now being and made statements in a

happen to observe about them

and that are

used as hearsay

criminal trial.

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QUESTION: jurisprudence statements is to

Do

you what

think

that

developing

a

decide more

constitutes than

testimonial developing a

any

difficult

jurisprudence to determine what are sufficient reliability Clause? MR. DREEBEN: No, Justice Scalia. to overcome the text of the

indicia of

Confrontation

I think they

both involve certain challenges. What the exists today indicia of is a body of law that has and with

reliability question,

respect to certain statements in the testimonial category, such as victim statements to the police in a condition

that might be likened to an excited utterance or sometimes in statements in and also true guilty pleas defendant conduct, on the aid of medical diagnosis or treatment, such as

statements against penal interests by a defendant trial lower but that does not

implicate the criminal those

simply have

acknowledges concluded

courts

that

statements do have sufficient indicia of reliability to be admitted. And our concern is that if this Court were to

adopt the testimonial approach, that it not do so in a way that would foreclose lower courts from taking advantage of evidence source, that is reliable, in unavailable from another well-

important

criminal

prosecutions

and

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grounded

in the theory

of the Confrontation

Clause as a

vehicle for achieving truth in criminal trials. QUESTION: Let's say you Why unavailable this -from another source? self-incriminating You could put he do

have

this

confession, but

the person is

available.

him on the stand to

test whether that confession that Why -- where do you -- where

made was true or false. you

pull this requirement that -If indeed because it

that he be unavailable the Confrontation does he

from? Clause

doesn't violate

it's sufficiently

reliable, why

have to be unavailable? MR. DREEBEN: Our position is that with respect is to get live, that the

to testimonial statements, the preference in-court testimony with all of the

benefits

Confrontation Clause envisioned for testimony. But sometimes still awaiting a defendant who pleads and as this guilty is held in

sentencing,

Court

Mitchell v. United States, the defendant still has a Fifth Amendment privilege and of privilege. can refuse to testify on grounds

Other defendants who plead guilty in their

own cases will sometimes refuse to testify even on pain of contempt, and at that point the choice for the judicial

system is either admitting that's criminal trial or manifest failure excluding it of justice

-- that evidence in the a

altogether and risking because there isn't

the

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evidence. And I think it's important to distinguish

between those kinds of statements, the excited utterances, 911 calls, true statements against penal interests that

implicate only one -QUESTION: Thank you, Mr. Dreeben. Thank you --

MR. DREEBEN: QUESTION:

Mr. Sherman, we'll hear from you.

ORAL ARGUMENT OF STEVEN C. SHERMAN ON BEHALF OF THE RESPONDENT MR. SHERMAN: the Court: The State of -- I guess, to simply Washington is asking the say -excuse me Court to the Mr. Chief Justice, may it please

-- retain Excuse me.

reliability framework of Ohio v. Roberts. The -the primary part of

Ohio

v. Roberts

that's important to and the reason essentially other rights other than

the State is the

reliability factor, because are

that -- that Roberts

that's important is recognizes that stake in a

Ohio v.

there

and interests at the

criminal trial rights. For

defendant's confrontation that society criminal as

example, interest

it recognizes in seeing

a whole

has an

that

activity is

properly

addressed. QUESTION: We could have written it that way, I

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suppose. saying enjoy

I mean,

the

Confrontation Clause

instead of shall

in all the

criminal prosecutions, to be

the accused the

right

confronted with

witnesses

against

him, we could have added, comma, unless there are

other considerations. MR. SHERMAN: QUESTION: That's correct -It says in all the right

It doesn't say that.

criminal prosecutions,

the accused shall enjoy

to be confronted with the witnesses against him. MR. Honor. SHERMAN: That -- that's correct, Your

And when I -QUESTION: Where -- I mean, I don't understand

where we derive this permissibility of not allowing him to confront the witnesses against him so long as we come to

the judgment that the evidence is inherently reliable. MR. SHERMAN: Well, Your Honor, I guess to I

answer that question properly, I at least

-- I'll speak to what

read and heard actually petitioner had in one of

the amici briefs concerning the -- the history surrounding the Confrontation to confrontation. Clause and how we got to have the right And essentially what I -- I gleaned

from that is there, at a point in time, was not a right to confrontation, and over the course of centuries, the right developed. But it appears based upon to me that it developed public policy based was,

-- developed

really what

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that the -- the society would not of the systems that were in

tolerate the inequities that were denying

place

confrontation and felt that it was of confrontation take place. So when the

fair that this concept

-- the Framers of

the Constitution

put that right into the Bill of Rights, it was based upon, in my view, their perception that the at that time that they're public policy that and make be their

their society everyone right. know

wanted to recognize retaining that to

I don't think, though, that it follow that -- that they intended

would rationally that

that everything

they said be written in stone and -QUESTION: QUESTION: amended. in the No. It That may be -could be amended. It could be

I mean, you know, there's an amendment provision

Constitution, but -- but until it's amended, it --

it does seem to say that in all criminal prosecutions, you -- you have the right to be confronted. MR. SHERMAN: -- I And I would agree. And in fact, I

think one of the points that --

that I -- I want to

make is that a literal interpretation of the Confrontation Clause bars the petitioner's proposal amici and the proposal of the and the proposal of maintain the

State to

Roberts framework.

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QUESTION: MR.

Why? If you take literally the

SHERMAN:

Confrontation Clause, I believe that it -QUESTION: witnesses. A witness It is a says witnesses, confront I

person who

testifies and

don't see any literal problem there. MR. SHERMAN: I -I believe that everyone that

comes and sits on the witness stand and says anything that is going to be used -QUESTION: A typical case that -where it

should come in, but I guess under their proposal it would, and under case of the status quo it probably wouldn't. drug conspiracy. During the We have a

conspiracy, well

before anybody means,

is caught, they discover, through whatever cup on the mantel, a pewter cup, Does it

that there's a

that's filled with drugs. belong to the defendant?

Who does it belong to?

We have a witness who overheard out from the kitchen, Dink, All

the defendant's have you got right?

wife shout

your pewter cup?

It's on the mantel.

Does that come in or not come in?

Whether it does

or not, it's not a Confrontation Clause question. You constitutional say that we should We make that into all a

question.

should

have

the

constitutional courts going into it or not? MR. SHERMAN: Well, I -- I respectfully disagree

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with Your Honor -QUESTION: Why? -- that it's not a Confrontation

MR. SHERMAN: Clause question. QUESTION: words, every time

All right.

You say

it is.

In other

that a -- that a -- a

trial in any one

of 50 million trials in the United States decides to admit some hearsay, Federal judge not, quote, in principle, you go into habeas and the

has to decide whether that hearsay is or is reliable, end quote, for purposes of the

Confrontation Clause.

That's the present system. Correct?

So you're the prosecuting attorney. MR. SHERMAN: QUESTION: Correct. have experience in

You

this area.

Tell me if this is right. What I would these habeas courts, to expect to have happen is that all

when they get real

hearsay, nothing

do with the trial, you know,

real hearsay like I just

talked to you about, they'll find it reliable if the -- if the -- if the State court admitted it. Then, however, they get where the police were to this kind of there a case out

actually going to

writing

affidavits

which they're

introduce, and

there

what they'll say is, no, it's not reliable. So in order to make the Roberts system work,

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what

will

happen is

you

have

to

have

two

ideas

of

reliability. making that

Now, has that been up? Because what

a problem or am they're

I just the

saying is

Roberts thing makes no sense. it keeps out stuff that seriously, stuff that

If you take it in and

seriously, it lets in it

should come out. And

should stay which is

if you

don't take

what must

have

happened,

it just

produces a mess. MR. SHERMAN: question, attempting Your to Honor, say was To address the first part of your I believe what I was -was

that

the Confrontation

Clause,

strictly interpreted, it is of any kind in.

going to not let

any hearsay

Yes, that is my position. You mean the -- the only kind of

QUESTION:

evidence that can become -- come in at a criminal trial is from a witness who's physically present in the courtroom. MR. SHERMAN: strict interpretation Honor. To question -QUESTION: interested saying. MR. SHERMAN: Well, actually -From your own -- if experience. I'm quite was answer the second part of -of your I believe of the that that would be a

Confrontation Clause,

Your

actually, if

you followed

what I

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QUESTION:

You work

in this area

and I'd like

MR. SHERMAN: experience, I have

I do and -very

and I can say from my arise the with

had

few problems under

Confrontation framework.

Clause

principles

Roberts

And -- and as a matter of fact, in 12 years of is the first time I've ever seen -- I've

practice, this

seen an interlocking confession come up. But I think that the reason that -QUESTION: Do you think this was interlocking? I do, Your Honor. differed on a

MR. SHERMAN: QUESTION: key element.

Well, they certainly

I'm not sure it would come in under Roberts. And, Your Honor, I -I believe of

MR. SHERMAN:

that the court of appeals that court, believed

also, at least the majority

that there was a

difference between --

what the -- Mr. and Mrs. Crawford were saying, but the our supreme court looked more closely at the

statements

and observed that in fact they were saying the same thing. QUESTION: Wasn't the whole point of admitting -- there

-- that she had,

in effect, said there

was no weapon, the victim was not taking a weapon out, and that was on the basis of her statement the prosecutor made exactly that argument? MR. SHERMAN: Wasn't that why it came in? No, not specifically that -- that

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she said that he wasn't taking one out because clearly she didn't say that. And if in fact that was the -Well, her description did not include

QUESTION: one.

And -- and wasn't that the basis of the prosecutor's

argument, that this wasn't self-defense? MR. SHERMAN: In part, and -- and -but his Both of

description did not include a -- a weapon either. their descriptions -QUESTION: description was that No, but the implication

of

his was

he reasonably thought something

coming out and he then in one of his know, it was him or me. admitted was that it

statements said, you

And the reason her statement was with that, that

was not congruent

there was no indication in her statement that a --- a weapon was being withdrawn. -isn't that the reason that So at the -- I the

that a

-- isn't the

statement, for

purpose it was admitted, was not interlocking? MR. SHERMAN: I believe of -- of that that was that and was

prosecutor's interpretation

that evidence, I think he

that is in fact what he argued incorrect. I think that if

at trial.

you look at the statement, it

very -- Sylvia Crawford very clearly says that -- that the victim appeared that he was pocket. QUESTION: After the assault. reaching for something in his

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 been don't but she quite

MR. SHERMAN: QUESTION: testimony is there?

No, Your Honor, I respectfully -we look at this since the

Why don't

I read it that way. And -and, Your Honor, as I

MR. SHERMAN: indicated, so did did our court

apparently my deputy prosecutor Our --

and so

of appeals.

our supreme court read

it as -- as I am. QUESTION: treating all these don't But one of the worrisome things about things as just hearsay reliability. testimony comes in. I

understand how this

When the

woman testified was drunk, reliable?

-- when the woman said in her statement I how could that possibly be

I closed my eyes,

MR. SHERMAN:

Well, she

did say those

things,

also said things that indicated that that was not quite correct. She also said, well, I saw I

--

certain things going.

I saw Michael stab

the victim.

saw the victim doing these -QUESTION: But she said at that time she had I just allows what the

drinking and she understand this

-- that

happened before. test that

reliability

something to come

in that doesn't coincide with

defendant himself said, and that oh, I was scared.

the declarant is saying,

I closed my eyes. Well, and -- and I understand Your

MR. SHERMAN:

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Honor's question and -- and that obviously you can't

position.

One of the

things of

get out

of the

flat piece

paper is -- is what her true problem.

condition was, and that is a

But I don't recall her saying specifically that at the time, merely that she indicated that Michael had

she was drunk at the -been drinking and she

had been

drinking as well.

But I don't know that -She did say that she shut her eyes I shut my

QUESTION:

and didn't really watch.

Those were her words.

eyes and didn't really watch. reliable? MR. SHERMAN: in the same breath Well,

How could such testimony be

because she at the

same -the

was able to

accurately describe

same events that Michael had described in his statement. QUESTION: But that's unreliable. I mean, you I saw

have a witness who says two -- two opposite things. this, and on the other hand, I shut my eyes. MR. Honor's SHERMAN: on And -I and -I I

understand Your

position

that.

just respectfully

disagree.

I don't think that those factors by themselves

necessarily render it to be unreliable. QUESTION: QUESTION: unreliable. it goes out. May I ask -But suppose we said it was

Let's suppose we held that. All right.

And in this case

Now, so we've had a pretty tough

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standard in It's been reliable.

your view of what counts as reliable and not. It has to be really

a pretty tough standard.

MR. SHERMAN: QUESTION: when the apply

Right. Now, what's going to happen

Okay.

courts, the Federal courts or tough standard of

the State courts, to hearsay in the --

that

reliability

statements

that have to

do with

the -- involved

commissions of the crime itself?

In other words, not

not when they're in the police station giving confessions, but like the example I gave you with the cup. Now, reliability Would they to suppose we those. apply the tough make standard of

Would

that

a difference?

then start to be kept out because they violate

the Confrontation Clause? MR. SHERMAN: I think at -- at a certain point

the tougher you make the standards for hearsay to come in, the fewer pieces of hearsay that are don't think that that's going to come in. this case I

necessary in

because

what -- if --

if we're simply talking about

interlocking

confessions and whether such a thing exists and if they -as the question presents, if there will ever be such a

thing as a confession that sufficiently interlocks so that it will be the Court sufficiently reliable to be admitted or not,

could simply say there's just never going to be

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a situation that comes before us where they will interlock sufficiently and -- and be admittable -- admitted. QUESTION: interlock, I know Mr. Sherman, on this question of Bruton

we've referred

to interlock in

cases where they've got joint trials of the defendants and that sort of for the thing. What is the that strongest case you have a joint trial, the

proposition

absent

interlocking critical?

nature of a confession --

or a statement is

MR. SHERMAN:

I think

it would

be this

case

that's before the Court today, Your Honor. QUESTION: I see. So none of our precedents

support that proposition. MR. SHERMAN: this Court has I think actually interlock the only theory time

addressed the

on its

merits -QUESTION: Is in the Bruton-type --- was in Lee v. Illinois when it the interlocking confession and

MR. SHERMAN: was simply the there wasn't issue of

any side issues of co-defendants in the same

trial or any of those other issues. QUESTION: But -- but we have said in other

cases that the reliability, which -- which Roberts insists upon, has to be established from the statement itself not from other statements. Right? and

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QUESTION: interlock -QUESTION:

Which

would

seem

to

exclude

Interlocking confessions.

That's the

problem I have with it. but the standard to exclude

We -- we haven't had such a case, Roberts would seem as establishing

that we expressed in confessions

interlocking

reliability. MR. SHERMAN: And if Roberts were the only case

that -- that the Court were to look at, that I think would -I would agree that I would be the case. Court But in Lee v. accepted -and

Illinois,

think this

very clearly

interpreted the concept thereafter in actually set

of interlocking confessions, York. to be But in Lee, used -- at

Cruz v. New forth a

the Court least in

test

Earnest v. New Mexico, the Court called it a test -- but a test to be used in determining when an interlocking

confession can be admitted. QUESTION:

Now, that followed Roberts. that a joint trial? I

But wasn't

can't remember for sure. MR. SHERMAN: I don't believe that Lee was a

joint trial, Your Honor. case in

In fact, I think in -- Lee was a

which the Court -- this Court determined that the not sufficiently interlock to make them

confessions did

reliable to be admitted, and also there was -QUESTION: I thought Lee involved co-

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defendants. MR. SHERMAN: don't -I Well, I -there I believe there -- I

don't recall

being

co-defendants at My recollection

trial, and is that the

I may be mistaken about that.

-- the two holdings of Lee were, one, that -by other evidence; and weren't sufficiently not

that they couldn't be corroborated two, that the confessions simply

interlocking.

And I may be

mistaken.

I just -- I'm

recalling there being co-defendants tried at the same time in that particular case. But my after Roberts -point being that Lee, of course, came

and, in my mind, established a third way of -- of determining was in Roberts. and your reliability that was Roberts had your

third form of

separate indicia

from what of

reliability

well-founded

hearsay

exception, and Court formed

then in Lee

it's my perception being the

that this

a third

test, that

interlocking

confession rule test, and that -QUESTION: that But the bottom line was that it --

that test was not met in the case, that there wasn't

a sufficient interlock. MR. SHERMAN: That -- that wasn't met in the Lee

case, and that was the decision of the court of appeals in this case. And it was our supreme court that reversed

that and said,

no, we believe that

they did sufficiently

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interlock. QUESTION: was simply that I thought that what we said in Lee

assuming that an interlocking didn't meet it.

confession

exception exists, this that we --

I -- I don't know

that -- that we spoke as though there was such We just said assuming it does exist, the the

an exception.

facts here don't -case held?

don't meet it.

Isn't that what

MR. SHERMAN: in the very

I think perhaps. Washington

I -- I know that Supreme Court

least the

State

interpreted it to be a test, and I know that in Earnest v. New Mexico, this Court called it a test for determining taking it

when interlocking confessions from both of those cases,

can come in.

So

the Washington Supreme Court in

the very least determined that it was a test, and in fact, in I believe test from -it's State v. from Lee v. Rice said Illinois we adopt this as to new

interlocking

confessions. QUESTION: five members of the I thought actually that there were

Court in Lee v. Illinois

to say that

confessions of a co-defendant are presumptively unreliable for purposes of Roberts. MR. SHERMAN: QUESTION: Correct, Your Honor. even if there was a so-

And that

called interlocking confession exception, it wasn't met in

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that case. MR. SHERMAN: interpretation. it's not the And -- and I can understand that

I -- it just --

I'm -- I'm certain that the Washington State

interpretation that

Supreme Court made, and in fact, most courts -QUESTION: Well, maybe they better re-read it.

(Laughter.) MR. SHERMAN: That's entirely possible, Your

Honor, and I'm certain that after today, they will -- they will do so. (Laughter.) MR. SHERMAN: The point -- but the point being

that if there is not an interlocking confession rule, then there is not. be a If this where Court says we -- there will one co-defendant's never

situation

confession,

regardless of how identical it is to the defendant's, will ever be reliable that test. accordingly. That, in all candor, is the lesser this case of the enough, then so be it. Then we'll have

It will be straightforward and can be applied

State's concerns in before

this coming

-- in

coming

this Court today, the primary concern of the State being that of -of of this Court retain the v. reliability a I

actually standard variety

State -that

of Ohio

Roberts for as

reasons

relate

essentially to,

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indicated earlier, this are simply other

underlying recognition that there at stake other than the

interests

defendant's that really need to be addressed. QUESTION: Why should the Court retain it when that

this very case gives us

an example of how arbitrary

determination is made whether it's reliable? can call something -a witness -- a

When a court the

declarant in

shape this one was and say that's reliable, shouldn't that make us worry about using that test? MR. SHERMAN: think this Court going to have Well, I have to say that I don't

or any court can make a test that is not some problems, and in fact, both the

petitioner and system have

the learned

professors

admit that

their

-- has problems too. The bugs are going

Any system is going to to have to be worked

have problems. out.

It'll take years of -- of cases,

and the -- and the any a

reality is -- and I, of course, mean no disrespect to judge -anytime you get -you have

a judge making

discretionary decision, on simply going opposite to be

the same set of that

facts there's exactly

some judges based

will make set

decisions

upon the

same

of facts.

That's just human nature. In this case -- and the point that I'm trying to make is that known entity. Ohio v. Roberts is a known quantity, it's a

I haven't experienced any problems with its

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application addressed at

personally my

or

in

cases

that

have A

been new

office since

I've been

there.

system that is

proposed by the

petitioner and the

amici

simply fails to take into consideration, as this Court did in Ohio v. Roberts, that there are other rights and other that are involved in a criminal case. It

interests

doesn't address problems unavailable should through no suffer

concerning witnesses that become fault to of the a State. criminal Yet, why

society

have

defendant

released simply because a witness has become unavailable? And you know, you can't always prove a defendant has made standard. There are similar other cases where particularly young witnesses, who are perfectly exactly what happened to them or setting, but capable of telling you what they've seen yet, because of in a a witness unavailable. That is a really tough

nonconfrontational

either

fear or intimidation,

they are simply unable to come into of a bunch of strangers or in

court and testify in front --

probably in front of the very person who is alleged to They're not going to be able to say

have victimized them. a thing.

Yet, there needs to be some way to get what they I -- I think that any to be contrary system to the

can say in front of a jury. that prohibits interests of

that is just going

society in general

and to the

interests of

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the other parties that -other than the defendant.

that are involved in the

trial

And if there are no further questions, thank you very much. QUESTION: Thank you, Mr. Sherman.

Mr. Fisher, you have 3 minutes remaining. REBUTTAL ARGUMENT OF JEFFREY L. FISHER ON BEHALF OF THE PETITIONER MR. FISHER: I rebuttal on think the Thank you, Your Honor. important to concentrate in

it's State's

suggestion

and the

Solicitor of

General's suggestion

to retain the

reliability prong

the Roberts framework. The Solicitor General agrees with us that the

history of the -- that -- that history here, clear. and the

you ought to be looking to this point is crystal

history on

From Rex v. -- Rex v. Paine in 1696, other English

cases before the Constitution, and then this Court's cases after the Constitution was adopted, principally Kirby Mattox, and all the way situation arose that was clear if the through Douglas, the -- when and the

a witness was unavailable, -to if the -if the

the rule was be

statement it had to

testimonial, excluded. struck

given

authorities,

And it's not -- and not --

the -- and the balance was not just because of these

by the Framers

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public policy were

considerations, but because of upon an adversarial method

the Framers of giving was

insisting And

testimony. not

when the Framers were simply

decided, when that not prepared to

present, that we

-- to

admit the testimony. And so what we have is we have a clear rule

until at least the 1970's that reliability doesn't matter. And the only time reliability -- first was adopted by this Court. The only time it became important was in Dutton v. had a non-testimonial statement, Court created a general and then framework

Evans when you in Roberts

when this

that it allowed reliability, all of a sudden, be into play when we were view too far. But once you bring the Confrontation Clause back to the proper Solicitor scope, as we're asking you to do and the stretching the Confrontation Clause in our

General is asking you to

do, there's really no The

reason anymore to -- to

keep the reliability prong.

reliability prong was -- was adopted by this Court to deal with the problem of hearsay that was coming outside the

testimonial type setting. read that problem away,

Once you -- once you read it -we're back to the original

understanding of the Confrontation Clause. And the reason that you ought to stick with that -- Justice Ginsburg I think put the nail on the head when

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she said the reason we're here today is that you have a -you -you have -what you have now is a system where want.

trial judges can

reach almost

any conclusion they

That's shown in our briefs. even describe to you how

The Solicitor General doesn't reliability -doesn't even the briefing

defend reliability findings

in light of all

by -- by the petitioner and by amici. And so I think that when you look at that, you

show that the very concern that gave rise to Raleigh trial -and I would say parenthetically that I believe Lord the

Cobham was transcript judges

unavailable in says. And

the trial.

That's what

the very

problem was

that trial

could do these reliability determinations in place

of -- of a clear rule of when testimony could be given. Thank you, Mr. Chief Justice. CHIEF JUSTICE REHNQUIST: The case is submitted. (Whereupon, at 11:56 a.m., the case in the Thank you, Mr. Fisher.

above-entitled matter was submitted.)

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