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Last week the Court decided Smith v. Arizona, Docket No. 22-89 holding that forensic expert reports are "testimonial" and that the Confrontation Clause requires that the individual who conducted the tests must testify in court and be exposed to the crucible of cross examination. This is not a landmark case; it fixes a glitch from a very divided court in Williams v. Illinois, 567 U.S. 50 (2012).

In the 20 years since the watershed case of Crawford v. Washington, 541 U.S. 36 (2004), courts across the country have been struggling to determine what is and is not a testimonial statement in order to comply with the parameters set out in that case regarding confrontation rights. Crawford is one of those cases that genuinely make sense but still leave you scratching your head.  It purports to reflect the “original understanding” of the Confrontation Clause which it does by walking us down memory lane of cases from England that occurred, in some instances, hundreds of years before the colonists broke free from the Crown. It is as though the newly liberated colonies in the late 18th Century decided that the very, very best way to establish this grand experiment in democracy would be to look to decisional law from the empire from which they just broke free at a time none of them could possibly recall.

Anyone who does a quick – or even a lengthy – search for early federal cases on the Sixth Amendment or on confrontation of witnesses or the meaning of the term "testimonial" will be disappointed. They just do not exist. At a time when the Supreme Court was bored out of its mind for not having enough to do, they could not drum up one questionable case regarding the right to confront witnesses? They could not regale us on the tribulations of Sir Walter Raleigh and explain the testimonial component of the Sixth Amendment? If it was so ingrained that Justice Scalia spent pages and pages painstakingly providing his own interpretive dance about the oppressive royal rules that made the Framers sure to include language regarding confrontation rights, how come it does not even become an issue for the Supreme Court for decades? And, even then, there was never any mention of some distinction between “testimonial evidence” versus non-testimonial evidence. And how come the Framers did not include the term "testimonial" if it was so important?

That is because these are things that sound very impressive but are really just word salad fabrications pretending that it is only in the light of day in the modern era that we can now see clearly what the Framers meant in 1789. Originalism, textualism, Federalist Society - it's all nonsense.

It is just as legitimate - I would argue more legitimate - to say – sure, colonists brought an English tradition of jurisprudence with them when they came to this continent. Each colony had a slightly different take on those traditions. And all of the colonies had their own governments. That is, despite being English subjects, they developed and honed their laws through their own legislatures and adjudicated the same in their own courts – even those run by the Crown.  It's kind of why, when the King and Parliament sought to curtail those liberties that they rose up in rebellion.

In the Massachusetts Bay Colony, by 1636, there were colonial courts in place. By 1641, there existed The Body of Liberties. Remarkably, the Body of Liberties includes allowances for widows and children and strangers coming to the Colony, it prohibits double jeopardy, it restrains the authorities from taking property without compensation, guarantees the opportunity to strike jurors at trial, provides the opportunity for bail, it prohibits forced oaths, and ensures that all inhabitants have equal access to the law. It does not mention confrontation rights.

In other words, if we are to glean the historical wrongs pressing on the mind which prompted writing down rules, it seems Henry VIII's forced oath of allegiance, Queen Mary's murder of Protestants, the Star Chamber abuses, and the disdain with which society has treated the least fortunate were the greater issues, at least in Massachusetts. that is not to say that presenting witnesses at trial and cross-examination was unimportant - but the concerns of the colonists just were not focused there in the moment.

Surely, the colonial courts developed a common law of evidence over time. But, it is likely that those cases were colonial cases. Only when there was a pressing need to answer an unusual question did anyone conduct any legal research or consult Blackstone's commentaries. Presumably, there would have been access to law books, but not to the degree they had in London. And, given the nature of common law, what is past is prologue.

To this day, Massachusetts does not even have rules of evidence, though there is a guide to evidence; this is nothing more than a compilation of decisional law - from Massachusetts - ruling on evidentiary issues. Although the Massachusetts Constitution does mention confrontation rights, just as in the federal Constitution, it appears in a list of basic trial rights including that are fairly well understood: "...every subject shall have a right to produce all proofs, that may be favorable to him; to meet the witnesses against him face to face, and to be fully heard in his defense by himself, or his council at his election."

In other words, while confrontation rights may well have been exercised and commonly understood in the early colony, the notion did not make it into the Body of Liberties even though that was much closer in time to the events Justice Scalia harps on in Crawford. It is possible that the right to confront witnesses was so ingrained as essential that Adams included it in the Massachusetts Constitution or it is possible that some event happened in the intervening 150 years (more or less) between the colonial founding and the new Commonwealth emerging that required the inclusion of confrontation rights. That is unclear. What is clear is that it is unlikely to have had anything to do with Sir. Walter Raleigh or anything happening in England under a prior or current monarch.

The reality is that colonists had enjoyed a great measure of self-governance by the late 1700's. They were very much on their own for most day-to-day governance. Whenever an authority comes it to take away liberties and understood rights to impose new burdens, people will rise up. That is not to minimize the burden of the new taxes, but it is to note that the bigger thing was the encroachment of new and inappropriate rules by a foreign government when people were accustomed to taking care of their own basic laws.

In Crawford, Justice Scalia pretends that cases from the time of the English Reformation somehow factored into decisions the collective United States were making for their new nation. This, bluntly, is absurd. Each colony was settled differently by different people with different experiences. All of the colonies had significant influxes of immigrants over the years who undoubtedly brought their own sensibilities; each developed different approaches to chattel slavery and to the native populations they all sought to eradicate; each felt different threats from foreign neighbors, primarily from France or Spain. They actually had 13 different common law traditions by the time the war ended and none of them was identical to the other or to that of Great Britain. Some may very well have cared deeply about the right to confront witnesses face to face; some may even have developed rules specifically because of the long-ago trials in England. But it is much more likely that the 13 separate colonies, upon uniting and developing a separate, federal Constitution, wanted to find common ground for these early Amendments guaranteeing individual liberties. Certainly no one would object to guaranteeing the right to cofront witnesses against the accused.

The Framers famously published lengthy debates known now as the federalist and anti federalist papers just to ratify the basic frame of government of the Constitution. This back and forth encouraged the ratification of the Bill of Rights 3 years after the Constitution became the law of the land. This was after years of war where the leaders experienced the problems inherent in the Articles of Confederation. To put it in historical context: the guarantee to the right to confront witnesses occurred 15 years after the Decalration of Independence. As a reminder, that document, in 1776, castigates King George III for wrongdoing including, but not limited to:

  • Obstructing the administration of justice, by refusing to assent to laws for establishing Judiciary powers;

  • Making judges dependent on his will alone for the tenure of their offices and for their paychecks;

  • Combining with others to subject the people of the colonies to a jurisdiction foreign to our constitution and unacknowledged by our laws (emphasis added).

In other words, by 1776, the colonies had their own way of doing things, thank you very much. They had their own courts, their own constitutions, and their own laws. So, by 1776, the colonies really were not looking backward for guidance. Honestly, how dependent were the colonies on the laws of England - and not just the laws of England, but the ancient cases identifying problems with the laws of England - by 1791? They were forging a new nation with the ideals of Enlightenment, not just copying rules from the land from which they were breaking free.

Of course they brought traditions. But the colonies were long settled and quite independent; they had developed their own jurisprudence and laws and courts long before the Revolution even began. It's just hard to see how the Bill of Rights had anything to do with relatively obscure, ancient English cases.

But, does Justice Scalia’s discourse on the true meaning of the confrontation clause mention any of that? Of course not. His wackadoodle version of history begins and ends where he wants it to.

Crawford made things fun and interesting for criminal defense attorneys and it continues to do so. It is also not wrongly decided – it says witnesses should appear in court and be subject to the crucible of cross examination. Who can argue with that?  But the idiocy about testimonial versus non-testimonial evidence and the hoops judges now need to jump through to cater to this weird and obscure historical narrative is just argle-bargle. Is it historically accurate as to the Framers' ideas about the right to confront witnesses? Probably not, but who knows? Who even cares?

Anyway, in the meantime -take every single case to trial (did they even allow guilty pleas in Elizabethan courts?? And if not, how could we?) Bring your witnesses and your tricorn hats and hone up on your cross-examination skills because despite all of the other evidence in the case against your client, the only thing the jury is listening to is whether the expert used the correct reagent.


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