In Crawford v. Washington, the Supreme Court grandly declared that the Confrontation Clause of the Sixth Amendment “commands” that the government’s case against a criminal defendant be tested in the “crucible of cross-examination.”
To enforce that edict, the Court held that prosecutors may not use uncrossed “testimonial hearsay” in criminal trials.
This holding is widely viewed as seismic. Crawford “revolutionized this area of the law,” a leading scholar noted recently.
As another put it, “Crawford is among the most important constitutional cases in modern times.”
This Essay argues that the conventional understanding of Crawford as “revolutionary” misses the forest for the trees. Crawford might have transformed Confrontation Clause jurisprudence, but it left the confrontation right itself mostly dormant. That’s because the confrontation right the Court articulated in Crawford is one that defendants can claim only at trial, and our criminal legal system has remarkably few of those. Criminal convictions today come overwhelmingly from guilty pleas, not guilty verdicts.
In a system of pleas,
a confrontation right that attaches at trial cannot make good on Crawford’s pledge to restore the “crucible of cross-examination.”
Judicial and scholarly interest in confrontation has been immense since Crawford.
Yet it has slipped under the radar that plea bargaining renders Crawford and the Confrontation Clause empty promises.
It doesn’t have to be this way. Plea bargaining and a robust confrontation right could coexist. But for the Confrontation Clause to be more than a parchment barrier, the Supreme Court would have to update its doctrine to account for the world as it is—a world in which plea bargaining is ubiquitous. Fortunately, there is precedent for such a move, and it comes from one of the Confrontation Clause’s closest neighbors. In Lafler v. Cooper and Missouri v. Frye, the Supreme Court updated the Sixth Amendment’s Counsel Clause to make it relevant to today’s criminal legal system.
This Essay shows how the Court could do the same for the Confrontation Clause.
Here’s the core argument. The Confrontation Clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”
Crawford recognized that the crucial question in implementing this text is figuring out who counts as a “witness against” an accused.
The Court answered the question by defining a witness for purposes of the Confrontation Clause as one who (1) makes a “testimonial” statement that (2) the government uses at trial.
I take the “testimonial” component of the definition—which has generated a lion’s share of the scholarly attention and case law—as given. Instead, I challenge the requirement that the statement be used at trial.
The Court’s trial-centric gloss on what it means to be a “witness against” an accused is at odds with the reality of the American criminal legal system—a “post-trial world” where the critical adjudicator is usually a prosecutor, not a judge or jury.
If only “trial witnesses” count as “witnesses,” then in a world without trials there can be few “witnesses” and very little confrontation. The Court’s restrictive gloss on “witnesses” is also inconsistent with the Sixth Amendment’s text, which attaches the confrontation right to those facing “criminal prosecution,” not just those in trial.
And it departs from the Court’s treatment of the Sixth Amendment in Lafler and Frye, where the Court held that a defendant may assert an ineffective assistance of counsel claim when their lawyer’s deficient performance caused them to miss out on a favorable plea deal.
In those cases, unlike in Crawford, the Court rejected the theory that the Sixth Amendment is meant only to ensure a fair trial.
That was because, as the Court explained in Frye, “ours ‘is for the most part a system of pleas, not a system of trials.’”
So then who are the “witnesses against” defendants in a system of pleas? They are the people whose “testimony” is used in the only adjudication that routinely matters—the plea bargain. The Confrontation Clause, I argue, commands that the government confront the defendant with those people, and the natural procedural mechanism for such confrontation is a deposition. I therefore propose that in the age of plea bargaining, the Confrontation Clause entitles criminal defendants to take the deposition of any accusatory “witness” whom prosecutors rely on in plea bargaining.
Depositions are not a routine part of criminal practice today in the federal system or in most states.
But a few states already allow criminal defendants to take them, and nothing about the logic of criminal litigation is inconsistent with depositions.
The objective for “Sixth Amendment depositions” would be to incorporate adversarial testing into plea bargaining outcomes. If the government’s witnesses performed well under cross-examination, the prosecutor’s negotiating leverage would increase, and with it the price of a plea. If the witnesses did poorly, that would strengthen the defendant’s hand. But whether depositions led to a higher or a lower plea price in any particular case, adversarial testing of the government’s evidence would have contributed to a fairer and more reliable adjudication.
That is the Confrontation Clause’s purpose.
By modernizing the confrontation right, by bringing it into the twenty-first century (or just the twentieth),
the Court could restore some of the adversarial process that plea bargaining has upended.
The full argument develops in three Parts. Part I describes the problem in more detail, Part II diagnoses its doctrinal roots, and Part III offers Sixth Amendment depositions as a solution. Part III also considers several likely objections to the proposal—that depositions would be too costly, that they would burden witnesses, and that they would become just one more bargaining chip for prosecutors and defendants to haggle over in plea bargaining—and argues that none justifies preserving the status quo. Finally, a brief Conclusion situates the proposal as an installment payment on the project of constitutional criminal procedure modernization that the Court started in Lafler and Frye.