Monday, November 16, 2009

Slouching toward Crawford v. Washington

I teach the basic course in the law of evidence. The time is fast approaching when I must again teach Crawford v. Washington, 541 U.S. 36 (1994), which is the font of the Court's modern (in using the word "modern," I speak only descriptively; I am not suggesting that Crawford represents progress) -- a case that is the foundation of much modern U.S. Confrontation Clause jurisprudence. Apparently unlike many of my Evidence colleagues in academia, I approach the task of teaching Crawford with dread. This is because the U.S. Supreme Court’s opinion in Crawford is rather like a Rorschach test: what one sees in Crawford about the difference between "testimonial" and "nontestimonial" pretrial statements (the reach of Crawford depends on this difference) -- what one sees in Crawford about this distinction largely depends on what one wants or expects to see and on one's pre-existing mental framework and dispositions. Alternatively stated, Crawford is a bit like the lineup of Kremlin leaders in the days of the Soviet Union at the annual May Day parade. In days of yore – in the days of the USSR – Kremlinologists studied the location of the people in this annual lineup with great care in an effort to determine the status of those people in the Soviet hierarchy. Crawford forces us act much like Kremlinologists: to determine the difference between testimonial and nontestimonial, we are required to search for hints in an opinion that was studiously and craftily crafted to prevent anyone from divining a clear answer.

In an effort finally to master the mysteries of Crawford, I began to print out the comprehensive (and characteristically irreverent) discussion of Crawford by Kenneth Graham, Jr., in the 2009 "pocket part" of 30A C. Wright (deceased) & K. Graham Graham, Jr., Federal Practice & Procedure. I emphasize the word "began": after I ordered the computer printer to print, I noticed it was churning for quite some time. On closer inspection, I realized that I had ordered a print job of approximately 255 pages. And these 255 pages include only Graham's discussion of Crawford; Graham's discussion of the Court sequelae to Crawford is found elsewhere. For fear of decimating the forests of the world, I ordered the printer to stop. I wept. I wept not about Graham's wordiness (he is indeed a bit wordy), but about a Supreme Court opinion that demands so much explication -- explication that mostly consists of passages that point out the insoluble riddles and paradoxes that Crawford presents.

Why do so many of my colleagues seemingly relish the task of talking about Crawford and its successors? The labors of those who work at explaining Crawford are very much like the labors of Sisyphus: such labors are endless and fruitless! (I exaggerate, of course -- but only slightly.) One does begin wonder whether so much human intelligence should be devoted to such a (largely) pointless task. However, law teachers are probably incapable of doing anything other than law teaching. So perhaps it's just as well that they are consigned to such labors: they believe they are doing something useful and this feeling of being useful perhaps impedes the development of serious revolutionary (i.e., rabble-rousing) sentiments among at least a portion of the intelligentsia (and one hopes that most of the rest of the intelligentsia has genuinely useful work to do).

Go here for more (and more serious) material on the Sixth Amendment Right of Confrontation.

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