On Tuesday, October 5, the Supreme Court heard oral arguments in Michigan v. Bryant.  The issue in Bryant was whether a victim's statements about a perpetrator that recently attacked him are testimonial under Crawford v. Washington and Davis v. Washington. (Generally, "testimonial" refers to statements offered for the purpose of prosecuting someone, and not for another purpose such as allowing the police to deal with an emergency.)

At oral argument, there was substantial debate about the rationale of distinguishing between testimonial and non-testimonial statements.  This discussion showed that the current state of Confrontation Clause law is muddled and in need of serious clarification.

Throughout the oral argument, three rationales for the distinction were offered: (1) the common-law drew such a distinction; (2) a statement offered for prosecutorial purposes is similar to trial testimony and officers should not be permitted to bypass confrontation by securing such testimony outside of court and then introducing it at trial; and (3) prosecution-driven statements are inherently unreliable.  The Court should reject the first two rationales and embrace the final one.

The common-law rationale does not explain why we distinguish between testimonial and non-testimonial statements.  Instead, it merely begs the question: why did the common-law draw such a distinction? Constitutional rules must be explained in terms of their ability to either protect individual rights or improve our criminal justice system.  If they are not, the rules not only lose their force, but they become difficult to apply to diverse factual scenarios.

The bypass concern is more valid than the common-law rationale, but it is still insufficient.  If officers are free to collect statements and then introduce them at trial, confrontation rights will unquestionably be threatened.  However, this rationale is inconsistent with a Davis footnote (that the Court stressed during argument and which Scalia appeared to be fond of) emphasizing that the witness' statements, not the police's conduct, is controlling: "it is in the final analysis the declarant's statements, not the interrogator's questions, that the Confrontation Clause us to evaluate."

On the other hand, the reliability rationale works well.  Statements offered for the purpose of facilitating prosecution are inherently biased and unreliable, and thus must be subject to cross.  This rationale would provide the "functional purpose" that Justice Breyer was seeking.

Many judges expressed a concern during oral argument that relying on a reliability rationale would undermine Crawford's rejection of the reliability standard (under the pre-Crawford Ohio v. Roberts regime, the trial court considered whether the statement was reliable, which was often accomplished by establishing that a firmly rooted hearsay rule applied).

Yes, Crawford rejected reliability as the touchstone, but it did not do so because reliability is not a constitutional value that the Clause is concerned with.  Instead, it rejected that rule because the rule allowed too many statements into Court without confrontation and because it permitted ad hoc determinations about reliability by trial courts.  In this way, Crawford simply changed the Confrontation Clause test in order to create a system that does a better job of allowing defendants to challenge the reliability of evidence.  After all, cross-examination's value lies principally, if not solely, in its ability to test the reliability of testimony.  But until the Court abandons its fear of discussing reliability in its Confrontation Clause cases, Confrontation Clause jurisprudence will remain muddled and confusing.