Teachers' Manual to Green, Nesson & Murray, Problems, Cases and Materials on Evidence, 3rd Edition.

CHAPTER VI: HEARSAY AND THE CONFRONTATION CLAUSE
Go to: Teacher's Manual Introduction Chapter 6 Contents  

Mattox v. United States, 156 U.S. 237 (1895) (561)

Application of the Federal Rules:

The testimony of the two deceased witnesses would be admissible under FRE 804(b)(1) as former testimony: the witnesses are unavailable; the testimony was given in the same case against the same parties; the testimony was subject to cross examination. The transcribed copy of the reporter's stenographic notes of the testimony of the two deceased witnesses would be admissible under FRE 803(5) as the reporter's past recollection recorded.

Theory of the Opinion:

The Court suggests that it is applying a rule of history, pointing out that the law at the time of the adoption of the constitution recognized dying declarations as an exception to the need for the confrontation, and then reasoning that the swom, recorded, cross-examined testimony of the two deceased prosecution witnesses in this case was much more reliable than a dying declaration.

The problem with the Court's approach is that if we determine the standard of the Confrohtation Clause based on a comparison with the reliability of dying declarations, then just about anything will make it. Indeed dying declarations present one of the hardest cases for confrontation theory; the declaration is often a crucially important accusation; there is no opportunity either for present or past cross-examination; the declarant was

not under oath; the declarant was in extremes, his powers of perception were likely to be deficient, his powers of narration and clarity reduced. Admissibility of dying declarations without confrontation rests on a rationalization that the sincerity of such declarations is trustworthy; but are we truly to take seriously the assertion that "a man will not face his maker with a lie upon his lips?"

Although the Court ostensibly rests its judgment on history, several of the other theories listed on pages 559-560 would provide post hoc rationalization. Number 2 (the minimal Wigmore rule) applies: the defendants were free to cross-examine the court reporter. Number 4 (minimal reliability) applies. Number 5 (preference for available witnesses) applies. Only Number 3 (cross-examination of any declarant) is not satisfied.




Pointer v. Texas, 380 U.S. 400 (1965) (571)

Application of the Federal Rules:

Phillips, the chief prosecution witness, testified at a preliminary hearing. The defendant tried to cross-examine other witnesses, but he was not represented by counsel and did not try to cross-examine Phillips, although his co-defendant did. At the defendant's subsequent trial, the transcript of Phillips' testimony is hearsay. Phillips is unavailable, but his former testimony does not qualify under FRE 804(b)(1) because, lacking counsel at the preliminary hearing, the defendant had no adequate opportunity to cross examine.

Theory of the Opinion:

The opinion is presented as if confrontation and cross examination are the same thing. The risk of framing the concepts this way, however, is that it is all too easy to fall into the trap of thinking that every time there is no adequate cross examination, there has necessarily been a denial of the right to confrontation. This won't work. We should not fault the opinion too much, however, because Black's main concern was to argue for incorporation, not to spell out the fine points of the concept of confrontation.

Of our listed theories: Number 2 is inconsistent with the result in the case. Number 3 is consistent with the result in the case, and sounds like what Black was saying.

Number 5 seems inconsistent with the result in the case, depending on what we mean by unavailable.



Ohio v. Roberts, 448 U.S. 56 (1980) (565)

Application of the Federal Rules:

This testimony would be admissible under Rule 804(b)(1)(former testimony). The fact that the witness had been called by the defendant should make no difference if the issues and motivations to develop the testimony of the witness were similar on the two occasions.

Theory of the Opinion:

Ohio v. Roberts speaks in broad general terms. Its statements that unavailability must be usually shown as a precondition to dispensing with cross-examination and that established hearsay rule exceptions do not offend the Confrontation Clause are dicta that have cause considerable speculation since the opinion came down.



Idaho v. Wright, 497 U.S.805 (1990) (567)

Application of Federal Rules:

This evidence would not have been admissible under the Federal Rules unless the court chose to take an expansive view of the residuary exception (now FRE 807).

Theory of the Opinion:

The Confrontation Clause requires some special indication of reliability of a hearsay statement offered and admitted under a residuary exception to the hearsay rule. These indications of reliability must be contained in the circumstances under which the statement was made - corroboration by other evidence is not enough.



White v. Illinois, 112 S. Ct. 736 (1992)(577)

Application of Federal Rules:

Evidence admitted under state versions of the excited utterance and medical diagnosis exceptions to the hearsay rule would be admissible under FRE 803(2) and (4).

Theory of Opinion:

In this case the Supreme Court interprets and limits the dictum in Ohio v. Roberts to the effect that unavailability is a condition prerequisite to admissibility of hearsay evidence. Statements covered by firmly rooted exceptions to the hearsay rule may be admitted regardless of the availability of the declarant.



Lilly v. Virginia, 527 U.S. 116 (1999) (587)

Application of Federal Rules:

The statements against penal interest of the defendant's alleged accomplice would be admissible under Rule 804(b)(3). The portions of such statements as implicate the defendant might not be against the penal interest of the accomplice, and hence may not be admissible under that rule.

Theory of Opinion:

The Supreme Court considered the admissibility of a statement against interest of an alleged accomplice, which also implicated the defendant, under a state hearsay exception for statements against penal interest. The Court held that an accomplice's confession which implicated a criminal defendant is not within a firmly rooted exception to the hearsay rule, and accordingly is subject to the Confrontation Clause unless the government can show some special circumstance of reliability. Corroboration is not sufficient for this purpose.

 

Go to: Teacher's Manual Introduction Chapter 6 Contents