C H A P T E R 11The Trial Process[T]here are principles.docx

C H A P T E R 11
The Trial Process
[T]here are principles of liberty and justice, lying at the
foundation of our civil and political
institutions, which no State can violate consistently with that
due process of law required
by the Fourteenth Amendment in proceedings involving life,
liberty, or property.
—JUSTICE JOHN MARSHALL HARLAN I, dissenting,
Hurtado v. California, 110 U.S. 516, 546 (1884)
479
CHAPTER OUTLINE
THE IDEAL OF THE FAIR TRIAL
Comparing Adversarial and Inquisitorial Trials
Steps in the Jury Trial
IMPORTANT CONSTITUTIONAL TRIAL
RIGHTS
The Right to Be Present
The Appearance of Fairness
Subpoena: The Right to Compulsory Process
Due Process and Access to Evidence
Right to Silence
Confrontation, Hearsay, and Cross-examination
Presumption of Innocence and Proof beyond a

Reasonable Doubt
THE JURY
Constitutional Requirements
Selecting an Unbiased Jury
Voir Dire and Fairness
LAW IN SOCIETY: JURY TRIALS AND
WRONGFUL CONVICTIONS
Convicting the Innocent
Why Trials Do Not Stop Wrongful Convictions
The Adversary Trial
SUMMARY
LEGAL PUZZLES
JUSTICES OF THE SUPREME COURT: THE
TWENTY-FIRST-CENTURY COURT: SOUTER,
THOMAS, GINSBURG, BREYER, ROBERTS,
AND ALITO
David H. Souter
Clarence Thomas
Ruth Bader Ginsburg
Stephen G. Breyer
John G. Roberts Jr.
KEY TERMS
abuse of discretion
accusatorial trial
adversarial trial
adverse comment
bench trial
challenge for cause
character witness

compulsory process
Confrontation Clause
cross-examination
direct examination
dossier
dying declaration
expert witness
hearsay
hung jury
in camera
inquisitorial trial
invidious discrimination
jury deliberation
jury pool
jury trial
“key man” method
master jury list
peremptory challenge
petty crime
presumption of innocence
prima facie case
reasonable doubt
representative cross section
secret informants
venire
verdict
voir dire
waiver trial
Samuel A. Alito Jr.
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THE IDEAL OF THE FAIR TRIAL
All cultures develop methods to ascertain the guilt of those
accused of serious norm violations or
crimes. Even if offenders are caught “red-handed,” there is a

human tendency to conduct formal
processes for declaring guilt. The trial therefore has two
functions: first, to determine a suspect’s
guilt in a practical and efficient manner, and second, to provide
a formal setting that solemnizes
the conclusion that this person is guilty and must be punished.
The jury trial performs these
functions in the Anglo-American legal tradition.1 Trial by jury
was not legislated into being all at
once as the best method to resolve criminal cases. Rather, it
evolved over centuries in England.
As a result many have argued that it is not the most efficient or
effective method of separating the
guilty from the innocent. Nevertheless, it is embedded in
American culture and is guaranteed by
Article III and by the Sixth and Seventh Amendments of the
U.S. Constitution, as well as by
every state constitution.
Trials in continental European countries differ substantially
from English or American jury
trials. In 1215 the Roman Catholic Church forbade priests from
participating in trials by ordeal
at the Fourth Lateran Council. Ordeals were superstitious
appeals to God to decide cases where
evidence pointed to a suspect but proof of guilt was uncertain.
England turned to its nascent jury
used to settle land claims, and gave the job of deciding guilt or
innocence to twelve men. On the
Continent, such cases were given to single judges, borrowing a
more direct procedure promul-
gated by the Church for the inquisition of heretics. English
juries did not explain verdicts and so
could hang defendants on the basis of circumstantial evidence.
European judges, who had per-
sonal responsibility for decisions, had to explain verdicts in

writing and could lawfully condemn
defendants only on “full proof”—eyewitnesses or confessions—
but not on circumstantial evi-
dence. The need for full proof led to the use of torture as a legal
judicial method in European
criminal trials until the mid-eighteenth century.2
Both trial by jury and the inquisitorial trial were advances over
the superstitious and bru-
tal methods of trial by ordeal. Of great importance in playing
their expressive as well as func-
tional roles is that in both systems of justice trials are generally
open to the public:
Legal systems to determine guilt are fundamentally different
from administrative
methods of determining facts, which can be carried out secretly,
but with accuracy
and impartiality, by police or other investigators. Legal
proceedings, however, must
give the appearance of being fair and accurate, and the best
way—perhaps the only
way—to give that appearance is by allowing the community
either to witness the
process through which the decision is made or to participate in
some way. This lends
the proceeding legitimacy, avoids suspicion and rumor of
official prejudice and arbi-
trariness, and gives the public a feeling of security. In the
second place, public adju-
dication proceedings perform an important function in the
administration of criminal
justice which cannot be achieved by administrative fact-finding:
they dramatize
moral issues and inform the public of the sad consequences
which attend violation of

the law. Through their public ceremonies adjudication
proceedings condemn, edu-
cate, and deter.3
After the seventeenth century, the common law criminal jury
trial was extolled as a guaran-
tor of British liberty because in political trials citizens resisted
authoritarian government pressure
and acquitted political opponents of the state.4 On the other
hand, the jury trial has been criticized
as inefficient and prone to error.5 Professor John Langbein
notes that the conduct of English
criminal trials before lawyers regularly defended suspects
(about 1750) left much to be desired.
The defendant had to defend him- or herself, and the jury sat
through as many as twenty trials a
day, each typically lasting about half an hour. Decisions were
made on groups of cases in open
court. The judge dominated the jury and could openly influence
its verdict.6
Although these earlier trials were inferior to contemporary
procedures under modern
standards of due process, a sense of fair play prevailed in them.
The English maxim—“It is
better that ten guilty go free than one innocent be convicted”—
sums up the common law attitude
to criminal justice. As a result, English common law trials did
not utilize torture, unlike continen-
tal inquisitorial trials prior to the eighteenth century, and a
defendant could have his or her say
in open court before a local jury. At the core of the adversarial
trial (or accusatorial trial) is
the idea of a fair fight, one in which the defendant is given a
full opportunity to challenge the

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The Trial Process 481

prosecution, to present witnesses, to confront and cross-examine
the accusers, and to present the
case to an impartial group of legal equals. The prosecutor,
further, has a very high burden of
proof: proof beyond a reasonable doubt. In the forum of the trial
court, the prosecutor is simply
another party before an impartial judge and has no special
status. Despite its glorious history and
high repute, unpopular verdicts and the knowledge that many
innocent people have been con-
victed have raised serious doubts about the ability of the jury
trial to achieve fair verdicts.
A brief comparison of the two trial systems will sharpen an
understanding of the jury trial.
Comparing Adversarial and Inquisitorial Trials
It may help to better understand the common law jury trial,
which originated in England and
is the form of trial in the United States, by comparing it to
European criminal trials that derive
from the “civil” or “Roman” justice system. Common law trials
are accusatorial or adversarial,
pitting the defendant, who is expected to gather evidence in his
or her defense, against the pros-
ecutor. Inquisitorial criminal trials in civil law countries, by
contrast, are viewed more as sys-
tematic inquiries into the truth of a criminal charge conducted
by trained police, prosecutorial,
and judicial officers.7
The most obvious difference is that the common law jury—a
group of ordinary citizens
chosen to hear a case—being instructed on the law, decides the

facts and renders the verdict, and
then disperses back into the population. In the inquisitorial
mode of trial, both the law and the facts
are decided by trained professional judges, sometimes with the
assistance of citizen-jurors. Another
difference is that the judge is the central actor in the
inquisitorial trial. The judge “runs” the trial,
conducts most of the questioning, and shapes the introduction of
evidence. In contrast, the attorneys
(adversaries) decide which evidence to present and how to
present it in common law trials. The
common law judge is more of a referee who decides whether
evidence is admissible and whether the
lawyers make errors. The common law judge occasionally
supplements attorneys’ questions with
his or her own. Another difference is that English and American
judges are drawn from the ranks of
practicing lawyers, while inquisitorial judges are highly trained,
lifelong career professionals.
Common law trials are based primarily on oral testimony that,
ideally, should be heard in a
continuous process. Each side collects its own evidence and
decides how to present its case.
Although the sharing of physical evidence by the police and
prosecutor with the defense has be-
come more common, there is only a limited obligation on
prosecutors to turn over exculpatory
evidence to defendants. Written or physical evidence has to be
introduced with testimony as to
its authenticity. In the United States, police investigate without
formal control or direction by
prosecutors, who are in separate agencies.
Modern inquisitorial trials are preceded by police investigations
under the formal directions

of a centralized prosecution office. The heart of the inquisitorial
trial is the investigation, which
gathers its findings into a detailed investigation file or dossier.
It is the dossier that is the focus of
the inquisitorial trial, although the trial itself is open to the
public and witnesses are sworn to testify.
The search for the truth in the adversary trial is accomplished
by the “clash of evidence” pre-
sented by the prosecution and the defense. Each side’s evidence
is subjected to cross-examination
by the other attorney, which is supposed to bring out the truth
to the jury. Formal rules of evidence,
such as the hearsay rule, exclude evidence that cannot be
subjected to cross-examination or that can
confuse or prejudice the lay jury. In contrast, the European trial
allows in all relevant evidence, with
a small number of privileges, for evaluation by professional
judges.
The privilege against self-incrimination exists in both systems.
In practice, defendants usu-
ally participate and testify in inquisitorial trials. In American
jury trials, defendants often do not
testify. Negative inferences may not be drawn from this silence
in American trials but are now al-
lowed to be made in England. The burden of proof is on the
prosecution in both systems, and in
both the defendant is presumed innocent.
The centrality of the search for the truth distinguishes these
systems. The search for the
truth is paramount in the modern inquisitorial system; in the
multipurposed adversarial trial,
truth may be subordinated to other values. Ingraham notes that
the adversary system is unique in

“the degree to which the question of guilt or innocence is left to
the game-playing skills of two
adversary lawyers.”8 Because the adversarial jury system
supports goals other than the truth of
the case (e.g., suppressing illegally seized evidence to deter
police and prosecutorial miscon-
duct), it is a better counterweight to political oppression.
Whether one system or the other pro-
duces more accurate verdicts and is less likely to convict the
innocent is subject to debate.
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Steps in the Jury Trial
The modern jury has continuously evolved into a complex
process involving a number of dis-
tinct steps briefly explained here.
JURY SELECTION—VOIR DIRE A panel of about forty
prospective jurors in a typical felony
case is led into the courtroom. The panel should have been
selected from a larger group repre-
senting a fair cross-section of the community (described later in
this chapter). Voir dire involves
questioning the entire panel and individual jurors, by the judge
and the attorneys, to weed out bi-
ased or prejudiced jurors. Each side can strike jurors via an
unlimited number of challenges for
cause where the judge agrees that the prospective juror is
partial. A limited number of
peremptory challenges are granted to each side, allowing the
attorneys to eliminate jurors for
any or no reason, except for the deliberate elimination of jurors
on the grounds of race, ethnicity,
or gender. Challenges are “fast paced, made on the spot and
under pressure. Counsel as well as
court, in that setting, must be prepared to decide, often between
shades of gray, ‘by the

minute’”(U.S. v. Martinez-Salazar, 2000).
OPENING STATEMENTS Each lawyer outlines the main points
of the case to the jury, putting
the best interpretation on the case. Both in voir dire and in
opening statements, lawyers also try
to make good personal impressions on jurors.
THE “CASE IN CHIEF” AND CROSS-EXAMINATION The
heart of the case is the presentation
of witnesses called by each side. By presenting evidence the
prosecutor seeks to convince the
jury that the defendant is guilty of the crime(s) charges beyond
a reasonable doubt. The defense
seeks to raise a reasonable doubt about guilt. The prosecution
goes first with the direct exami-
nation of prosecution witnesses. Each prosecution witness may
be cross-examined by the de-
fense lawyer. The prosecutor must establish probable cause or a
prima facie case of guilt at the
end of his or her case. The defense may make a motion to
dismiss at this point on the ground that
probable cause of guilt was not established. The motion is
typically denied, but it may succeed if
the prosecutor has not offered proof as to an essential element
of the crime. The prosecution case
may be followed by the defense presenting witnesses, whom the
prosecution may cross-exam-
ine. The defense may put on a case by the direct examination of
its witnesses or may rest its case
without presenting witnesses on the belief that it has raised
sufficient reasonable doubt to con-
vince the jury to acquit.
There are three types of witnesses. Ordinary witnesses can
testify only as to their personal

observations. A witness may also introduce documents or
physical evidence. Expert witnesses,
on the other hand, are allowed to offer opinions in their area of
expertise. Character witnesses
may testify only to the general good reputation of the defendant.
Cross-examination, deemed a
great “engine” to determine the truth, is designed to discredit
witnesses’ testimony or credibility
with the jury. After a witness has been cross-examined, the lead
attorney asks questions on redi-
rect; these questions are limited to clarifying or rehabilitating
the witness on the points specifi-
cally raised by cross-examination.
CLOSING STATEMENTS The defense attorney first addresses
the jury, followed by the prosecu-
tor. The prosecutor has the last word because of the heavy
burden of proof beyond a reasonable
doubt. The attorneys bring together the various pieces of
testimony and evidence, weaving to-
gether a coherent and convincing narrative. The prosecutor
explains why the evidence indicates
that the defendant is guilty beyond a reasonable doubt, while
the defense counsel explains why
the evidence establishes reasonable doubt. A pithy and famous
example of reasonable doubt was
Johnny Cochran’s exhortation to the jury in the O. J. Simpson
murder trial: “If the glove doesn’t
fit, you must acquit.”
JURY INSTRUCTIONS Following the presentation of evidence
and closing statements, the judge
instructs the jurors on the law by defining and explaining the
crimes charged, the rules of evi-
dence (especially proof beyond a reasonable doubt), and the
possible verdicts that are allowed.

JURY DELIBERATIONS AND VERDICT Jurors are sworn to
follow the law as instructed by the
judge and deliberate in private to review the evidence and vote
on the verdict. For each count of
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the indictment, the jury must enter a verdict of guilty or not
guilty. The verdict must be unani-
mous, except in states that allow a verdict based on a
supermajority vote. If a jury is deadlocked
and the vote is lopsided, the judge will admonish holdout jurors
not to be rigid and to reasonably
review the evidence as viewed by the majority. If further
deliberations do not change the vote, the
court declares a hung jury; the case is dismissed but may be
retried at the prosecutor’s discretion.
POSTVERDICT MOTIONS The defense can submit a motion
for judgment notwithstanding the
verdict (or judgment NOV, for non obstante verdicto) or a
motion in arrest of judgment, arguing
that the jury could not have reasonably convicted the defendant
based on the evidence presented.
The defense can also file a motion for a new trial based on the
judge’s errors in admitting evi-
dence. Such motions are rarely successful.
An actual trial involves more complex preparation, strategy,
psychological penetration,
and dramatic human action than this list can show.9
IMPORTANT CONSTITUTIONAL TRIAL RIGHTS
The trial is guided by many complex rules of criminal procedure
and evidence law. This section
presents an overview of some important constitutional trial
rights.

The Right to Be Present
A defendant’s right to be present throughout the trial is based
on the Confrontation Clause of
the Sixth Amendment (Diaz v. United States, 1912) and on due
process. A defendant has the right
to accompany the jury if it leaves the courtroom to view the
scene of the crime. However, in
United States v. Gagnon (1985), the Court held that there was
no Sixth Amendment violation
when a judge met with a juror and the defense attorney (without
the defendant presence) regard-
ing the juror’s nervousness because the defendant drew sketches
of the jurors during the trial.
The defendant’s presence at the meeting was not required to
ensure fundamental fairness or a
reasonable opportunity to conduct the defense. The Gagnon rule
applies to cases where the de-
fendant is excluded from pretrial evidence suppression hearings.
Secret trials (“kangaroo courts,” “star chamber proceedings”)
are anathema to the adver-
sary system and have been eliminated from civilian trials. A
serious issue arises where in a trial
against terrorists, corrupt government contractors, or
government officials involved in foreign
relations for illegal acts, the defendant seeks to introduce
classified information that may harm
the national security if it is leaked to the public. To balance a
defendant’s right to an open trial
against the protection of national security, Congress passed the
Classified Information
Procedures Act of 1980. Under the law, the defense may use
classified material, but it must noti-
fy the prosecutor in advance as to which secrets will be used.

The government is then given the
opportunity to submit edited statements in place of the disputed
documents. If the judge is not
satisfied that these statements are fair to the defense, the
prosecution is then given the option of
allowing the documents to be made public or to drop the
charges that bring the secrets to light in
the courtroom.10
Ray Agard, charged with sodomy and sexual assault, testified
on his own behalf that the
sexual encounter was consensual. In her closing statement the
prosecutor said that Agard,
“unlike all the other witnesses in this case . . . [had] has a
benefit . . . [U]nlike all the other
witnesses . . . he gets to sit here and listen to the testimony of
all the other witnesses before he
testifies. . . . That gives you a big advantage, doesn’t it. You get
to sit here and think what am I
going to say and how am I going to say it? How am I going to
fit it into the evidence? . . . He’s
a smart man. . . . He used everything to his advantage.” Agard
complained that the prosecutor’s
statements deprived him of his right to be present at the trial, by
placing a burden on his pres-
ence. The Supreme Court in Portuondo v. Agard (2000)
disagreed. Agard asked for a ruling like
that in Griffin v. California (1965), which held that judicial
comment on a defendant’s silence
unconstitutionally burdened his Fifth Amendment right to
silence under the privilege against
self-incrimination. The Court distinguished the cases. Jurors are
not supposed to infer guilt from
a defendant’s silence, making a prosecutor’s comment an
invitation to engage in prohibited rea-
soning. In this case, however, Agard took the stand and

testified. Having done so, it is natural
and proper for the jury to weigh his credibility as a witness.
Thus, the prosecutor’s statement did
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484 Chapter 11
not violate any trial right or create any fundamental unfairness
under the Due Process Clause.
Two justices dissented and two expressed the view that the
prosecutor’s statement is not one to
be encouraged.
DISRUPTIVE DEFENDANTS A defendant who behaves in a
loud, obnoxious, and disruptive
manner cannot force the state to delay or dismiss a case. In
Illinois v. Allen (1970), Justice Hugo
Black stated:
It is essential to the proper administration of criminal justice
that dignity, order, and
decorum be the hallmarks of all court proceedings in our
country. The flagrant
disregard in the courtroom of elementary standards of proper
conduct should not and
cannot be tolerated. We believe trial judges confronted with
disruptive, contuma-
cious, stubbornly defiant defendants must be given sufficient
discretion to meet
the circumstances of each case. No one formula for maintaining
the appropriate
courtroom atmosphere will be best in all situations. We think
there are at least three
constitutionally permissible ways for a trial judge to handle an
obstreperous defen-
dant like Allen: (1) bind and gag him, thereby keeping him
present; (2) cite him for
contempt; (3) take him out of the courtroom until he promises to
conduct himself
properly. (Illinois v. Allen, 1970)

A trial judge must first be patient with and admonish a
disruptive defendant, explaining
that obstructionist tactics will not work, before taking the
drastic steps of binding or removal.
Today, defendants who have been forcibly removed from the
courtroom are able to view the trial
and communicate with their lawyers from a jail cell through
interactive video links.
ABSCONDING DEFENDANTS A defendant who skips out in
the middle of a trial forfeits the
right to be present, and the trial may continue in his or her
absence. The Supreme Court rejected
the argument that for the trial to continue in absentia, the judge
had to have explicitly warned the
defendant about the right to be present. This would add a
meaningless formality. Defendants
don’t have to be told that they are required to be present and
that if they abscond, the trial,
“where judge, jury, witnesses and lawyers are present and ready
to continue,” will go on in their
absence (Taylor v. United States, 1973).
The Appearance of Fairness
The appearance of fairness is important because jurors, as
ordinary citizens, can be swayed
by prejudicial factors. Consider a huge difference between
French and American trials. In
France, the defendant’s entire life background including his past
criminal record is consid-
ered by the court before rendering a verdict. French judges, as
highly trained and expert legal
professionals, should be able to separate out the defendant’s
background from the specific

question of whether he or she committed the criminal act.
Jurors, however, cannot be trusted
to put aside prejudicial facts, and so the trial is structured in a
sense like an antiseptic surgi-
cal operating room where only facts relevant to guilt or
innocence are admitted. As the Court
has said, “one accused of a crime is entitled to have his guilt or
innocence determined solely
on the basis of the evidence introduced at trial, and not on
grounds of official suspicion, in-
dictment, continued custody, or other circumstances not
adduced as proof at trial” (Taylor v.
Kentucky, 1978).
Estelle v. Williams (1976) held that due process is violated
where a state compels a de-
fendant to go to trial in a jail or prison uniform. The Court’s
majority held, however, that the
defendant had to object to make the rule effective, while Justice
Brennan, dissenting (joined
by Justice Marshall), would have found that the fact that
Williams went to trial in “a white
T-shirt with ‘Harris County Jail’ stenciled across the back,
oversized white dungarees that
had ‘Harris County Jail’ stenciled down the legs, and shower
thongs” constituted a violation
whether or not objection was made. Chief Justice Burger’s
majority opinion indicated that
the rule against forcing a defendant to wear jail clothes was
designed in part to preserve the
presumption of innocence. But he indicated that the rule was not
absolute, noting, for exam-
ple, that Illinois v. Allen (1970) permitted the shackling of a
disruptive defendant. In
stronger terms, Justice Brennan got to the real danger of
allowing a trial to proceed under

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such a condition: “Identifiable prison garb robs an accused of
the respect and dignity ac-
corded other participants in a trial and constitutionally due the
accused as an element of the
presumption of innocence, and surely tends to brand him in the
eyes of the jurors with an
unmistakable mark of guilt.”
The question of shackling, which the Court said may be
necessary to control an ob-
streperous defendant, was reconsidered in Deck v. Missouri
(2005). The Court held that
whether at a trial or the penalty-phase trial in a capital case, due
process does not allow “the
use of physical restraints visible to the jury.” Exceptions are
allowed only if the trial court
finds “that they are justified by a state interest specific to a
particular trial.” Judicial “hostility
to shackling” is based on three principles. First, “[v]isible
shackling undermines the presump-
tion of innocence and the related fairness of the factfinding
process.” Second, shackling un-
dermines the defendant’s right to a lawyer by interfering with
the “ability to communicate”
with counsel both directly and by burdening, confusing, or
embarrassing the defendant.
Dignity of the courtroom is the third principle.
The courtroom’s formal dignity, which includes the respectful
treatment of defen-
dants, reflects the importance of the matter at issue, guilt or
innocence, and the grav-
ity with which Americans consider any deprivation of an
individual’s liberty through
criminal punishment. And it reflects a seriousness of purpose
that helps to explain

the judicial system’s power to inspire the confidence and to
affect the behavior of a
general public whose demands for justice our courts seek to
serve. The routine use of
shackles in the presence of juries would undermine these
symbolic yet concrete ob-
jectives. As this Court has said, the use of shackles at trial
“affronts” the “dignity and
decorum of judicial proceedings that the judge is seeking to
uphold.” (Deck v.
Missouri, 2005)
The non-shackling rule is not absolute, but in order to
constitutionally shackle a defendant,
the trial judge must make specific findings as to why special
security needs or a heightened risk
of escape requires irons.
Another question is whether action by non-state actors can
create such a gross appearance
of unfairness as to undermine a trial’s fairness. A number of
older cases decided under the Due
Process Clause make it emphatically clear that the source of
unfairness does not matter; what
matters is whether the defendant received a fair trial. The first
such case was, in fact, the first
case in which the Supreme Court ever reversed a state criminal
conviction under the Due
Process Clause: Moore v. Dempsey (1923) (see Chapter 1
regarding the role of the case in the
incorporation of the Bill of Rights). Moore held that a lynch
mob present outside a court during
a trial “that threatened the most dangerous consequences to
anyone interfering with the desired
result” undermined any semblance of a fair trial and constituted
a due process violation allow-

ing a federal court to reverse a state conviction under a federal
writ of habeas corpus. Other
cases held that excesses by print or television news reporters
that created a “carnival atmos-
phere” and prejudiced the minds of the jurors violated due
process (Estes v. Texas, 1965;
Sheppard v. Maxwell, 1966).
Not every possible factor in a courtroom that might make a
juror dwell on the defen-
dant’s guilt is a due process violation. A unanimous Court held
that the presence of four armed
state troopers seated behind the rail in a trial of six armed
robbers was not so inherently preju-
dicial as to deny a defendant’s right to a fair trial (Holbrook v.
Flynn, 1986). Likewise, in
Carey v. Musladin (2006) a unanimous Court found no due
process violation where family
members of a homicide victim sat in the front seat of the
spectators’ section during a trial and
wore buttons two to four inches in diameter that only displayed
his photograph. Justice
Thomas’s majority opinion, under convoluted new rules of
habeas corpus, was only willing to
rule that “the state court’s decision” finding that the trial was
not unfair because of the buttons,
“was not contrary to or an unreasonable application of clearly
established federal law.” Three
concurring justices (Stevens, Kennedy, and Souter), however,
made it clear that the rules of
cases like Moore v. Dempsey (1923) and Sheppard v. Maxwell
(1966) were applicable, and that
if trial spectators had acted in ways to create an unfair trial
atmosphere the Supreme Court
would have had the authority to reverse, but agreed that there
was no due process violation

under the facts.
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Subpoena: The Right to Compulsory Process
The Sixth Amendment guarantee that the defendant shall have
“compulsory process for obtain-
ing witnesses in his favor”—that is, the subpoena right—is
meant to eliminate barriers to rele-
vant testimony that the defendant wishes to offer. A trial would
be grossly unfair if only the state,
and not the defense, had such power. The right was incorporated
into the Fourteenth Amendment
Due Process Clause in Washington v. Texas (1967). Washington
was charged with murder for a
killing that occurred during an argument. His defense was that
he was trying to persuade Fuller,
the actual killer, to leave and was not in the room when the gun
went off. Fuller had been con-
victed and was willing to testify in Washington’s defense. The
state blocked his testimony by re-
lying on a Texas law that forbade an accomplice to testify for
another. The Supreme Court held
that this law violated the Compulsory Process Clause. A state
may prevent some defense testimo-
ny under ordinary rules of evidence (e.g., because the testimony
is irrelevant or incompetent),
but it may not disallow relevant evidence.
In Webb v. Texas (1972), the defendant’s only witness was
subpoenaed from prison, where
he was serving a sentence. The trial judge threatened the
witness with heavy-handed warnings
against committing perjury and said that lying would extend the
witness’s prison term and be
counted against him by the parole board. This so terrified the
witness that he refused to testify.
The Supreme Court, ruling that the trial judge’s unnecessarily

emphatic warning “drove the
witness off the stand,” reversed the judgment. This due process
violation tended to undermine
the defendant’s subpoena right. In more recent years, the
Supreme Court has weakened the right
to compulsory process.
In United States v. Valenzuela-Bernal (1982), the Supreme
Court held that the govern-
ment could deport illegal immigrants before a trial in which
they might be called as defense wit-
nesses concerning their being smuggled into the United States.
The defense attorney did not even
have an opportunity to interview them. The Court felt that the
government’s legal obligation to
swiftly deport aliens, the financial costs of prolonged detention,
and the human costs to the de-
tainees were more important than the defendant’s Sixth
Amendment right to subpoena witnesses.
In Pennsylvania v. Ritchie (1987), a father charged with incest
sought to subpoena records
from Children and Youth Services (CYS), a protective service
agency, claiming that the records
were necessary for the defense to cross-examine witnesses.
Pennsylvania courts granted the
defense request to fully examine the contents of CYS
confidential files on the basis of the defen-
dant’s confrontation and compulsory process rights. The U.S.
Supreme Court reversed, in part,
noting that the Confrontation Clause “does not include the
power to require the pretrial disclo-
sure of any and all information that might be useful in
contradicting unfavorable testimony.”
Since the defense counsel was able to cross-examine all
prosecution witnesses fully, there was

no violation of the Confrontation Clause. Justice Powell,
writing for the majority, also noted that
Pennsylvania law allowed a court to disclose parts of a youth’s
record. The Court agreed that
Ritchie was entitled to have a trial judge, but not the defense
lawyer, review the CYS records to
determine which were material. In this way, the defendant’s
compulsory process right was bal-
anced with “the Commonwealth’s compelling interest in
protecting its child abuse information.”
The Ritchie rule places much discretion and trust in the judge’s
hands, but it weakens the adver-
sary system, which is premised on the idea that lawyers are
better able to detect favorable facts
in a record than judges because they are motivated to do so.
Due Process and Access to Evidence
Closely related to the Brady rule (discussed in Chapter 10) are
attempts, thus far unsuccessful, to
establish constitutionally guaranteed access to evidence. In
three cases, the Supreme Court ruled
against defendants seeking to make the preservation of or access
to evidence held by police a due
process requirement. There was no evidence of police bad faith
in the preservation cases, that is,
trying to evade Brady’s requirement that prosecutors turn over
factual evidence to the defendant.
At worst, the police were negligent in failing to preserve the
evidence.
California v. Trombetta (1984) held that police departments do
not have to preserve breath
samples with alcohol readings, for testing by defendants in DUI
cases. Trombetta argued that
the sample would allow him to impeach the test’s accuracy. The

routine failure to save breath
samples and the introduction of breath-analysis test results do
not violate defendants’ due
process rights to a fair trial. First, “the chances are extremely
low that preserved samples would
have been exculpatory.” The breath-analysis test is routine, and
if administered properly, there is
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a low probability that the results will be inaccurate. Also,
defendants can inspect the breath-
analysis machine. A prior case held that a defendant’s due
process rights were not violated when
evidence was admitted based on preliminary field notes taken
by FBI agents (used to prepare a
formal report) that were inadvertently destroyed (Killian v.
United States, 1961). The Court hint-
ed that imposing administrative requirements on all police
departments bordered on the Court’s
improperly exercising its supervisory power.
A more serious case arose in Arizona v. Youngblood (1988).
Youngblood was identified by
the ten-year-old victim of a sexual assault in a photo lineup
nine days after an abduction and anal
sodomy. A hospital physical examination using a “sexual
assault kit” collected samples of the
boy’s saliva, blood, and hair, and swabs from the boy’s rectum
and mouth, which were refriger-
ated, and the boy’s underwear and T-shirt, which were not
refrigerated. A blood group test was
not performed at this time. Later examination found that
samples in the kit were insufficient to
detect any blood group substances, and that two semen stains
found on the boy’s clothing could
not yield information of the semen depositor’s blood type
because the clothing had not been re-
frigerated. At trial Youngblood argued that the victim’s

identification was inaccurate and that he
could have proven his innocence if the clothing had been
properly refrigerated.
With Trombetta as precedent, Supreme Court held the police
destruction of evidence by not
refrigerating it was not a denial of due process even though the
preserved evidence could have
eliminated Youngblood as the perpetrator. The lack of a bad
faith attempt by the police to hide evi-
dence from the defendant in order to get around his Brady right
to disclosure was an important fac-
tor in the ruling. Although properly preserved semen evidence
might have exonerated Youngblood,
the majority noted that the Court had in the past been reluctant
to say that fundamental fairness, a
central meaning of due process, imposed “on the police an
undifferentiated and absolute duty to re-
tain and to preserve all material that might be of conceivable
evidentiary significance in a particu-
lar prosecution.” This reflects the powerful tug of federalism as
a continuing reason why the
Supreme Court has been reluctant to impose constitutional
requirements on the police. Justice
Stevens, concurring, said that “Although it is not possible to
know whether the lost evidence would
have revealed any relevant information, it is unlikely that the
defendant was prejudiced by the
State’s omission” (Arizona v. Youngblood, Stevens, J.,
concurring, emphasis added).
Justice Harry Blackmun, dissenting (joined by Justices Brennan
and Marshall), argued that
(1) the Brady line of cases did not rest on a prosecutor’s bad
faith, so any failure to provide
evidence, even if negligent, was a constitutional wrong; (2) the

real test of whether a trial is funda-
mentally unfair is whether the unavailable evidence was
“constitutionally material”; (3) the
Trombetta decision relied on the high accuracy level of breath-
analysis tests, making the breath
samples not constitutionally material; (4) a preserved semen
stain could have identified a blood
type marker that could clearly have exonerated Youngblood if
his semen blood type marker did not
match that of the semen on the victim’s clothing; and (5)
therefore, semen evidence is constitution-
ally material. Justice Blackmun noted that due process must
take the burdens on law enforcement
into account. In a case such as this, the state could have had the
proper tests conducted in a timely
fashion or could have notified the defense that it intended to
discard the original evidence. This
would have given the defense notice and time to have the
evidence tested.
Youngblood underscores the vital importance of proper police
procedures in preserving ev-
idence. DNA testing became available soon after, allowing tests
on small samples of dry body
evidence. A later DNA test on the preserved semen stain on the
unrefrigerated clothing showed
that Larry Youngblood was not the attacker of the ten-year-old
boy. He was released from cus-
tody in August 2000 after serving nine years for a crime he did
not commit. When the DNA pro-
file was entered into the national convicted offender databases,
it matched the profile of Walter
Cruise, who, like Youngblood, is blind in one eye. In August
2002, Cruise was convicted of the
crime and sentenced to twenty-four years in prison.11 The
aftermath of Youngblood demonstrates

the hollowness of its result, and the absolute need for police
departments to comply with the best
practices of evidence collection and preservation.
In District Attorney’s Office v. Osborne (2009) the Supreme
Court (5–4) refused to hold
that a defendant has a substantive due process, freestanding
right to DNA evidence. In his major-
ity opinion, Chief Justice Roberts noted that the Supreme Court
has been reluctant to expand the
concept of substantive due process because such rulings tend to
entangle the Court in legislative-
like decisions regarding the details of a substantive due process
right and “would force us to act
as policymakers.” This was an odd and complex case for a
number of reasons. Osborn was con-
victed of kidnapping and sexual assault in 1993 and was
released on parole in 2007. In a section
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488 Chapter 11
1983 civil rights suit (see Chapter 2), he asked for advanced
DNA testing of a sperm sample
from the crime, despite the fact that his lawyer refused an
earlier and less precise DNA test at
trial because she thought he was guilty. He had also confessed
to the crime in prison in order to
obtain parole. Under these conditions, Alaska, one of only four
states without a statute providing
post-conviction access to DNA testing, resisted Osborn’s
request for testing. The Court hinted
that a prisoner might be able to obtain access to DNA testing in
a habeas corpus appeal instead of
a civil rights suit. Further, under the specific facts and post-
conviction procedures in Alaska that
held open the possibility of DNA testing under conditions not
met by Osborn, the Supreme Court
ruled that the denial of testing in this case did not violate the
fundamental fairness test of

procedural due process.
Aside from Osborn himself, did the Court’s ruling cut off DNA
testing access to
prisoners claiming to be innocent? The majority opinion noted
that “DNA testing has an
unparalleled ability both to exonerate the wrongly convicted
and to identify the guilty. It has
the potential to significantly improve both the criminal justice
system and police investiga-
tive practices.” Because of this, as of 2009 the federal
government and forty-six states had
passed laws allowing prisoners “to move for court-ordered DNA
testing under certain speci-
fied conditions.” The federal act also grants money to states that
enact testing statutes to sub-
sidize testing. Courts in three of the four states without post-
conviction testing laws have ad-
dressed the issue, and there has been such rapid expansion of
such laws that the remaining
states may pass enabling legislation.
In his dissenting opinion, Justice Stevens noted that the DNA
evidence sought would con-
clusively establish whether Osborne committed the crime, is
inexpensive, and “and its results
uniquely precise. Yet for reasons the State has been unable or
unwilling to articulate, it refuses to
allow Osborne to test the evidence at his own expense and to
thereby ascertain the truth once and
for all.” He argued that Osborn had a due process liberty
interest that arose from various
sources—from a state law that provides general post-conviction
relief, and from substantive lib-
erty interests “to have evidence made available for testing,” or
to be “free of arbitrary govern-

ment action.” As noted in Chapter 1, substantive liberty was not
created by the Due Process
Clause but is a more fundamental “unalienable” right listed in
the Declaration of Independence,
but a right that has been recognized in many areas by the Court.
As of this writing it is not clear
whether the decision in Osborn will make a great difference.
The majority strongly implied that
access to DNA testing has been made available and is not a
concern of the federal courts. The al-
ternate concern is that state statutory conditions for access vary,
and in some states DNA evi-
dence may become very difficult to get without the backup
possibility of recourse to federal
courts under the Constitution. If so, this is an issue that can re-
arise as a claim under the Due
Process Clause.
Right to Silence
The Fifth Amendment right guarantees that no person “shall be
compelled in any criminal case
to be a witness against himself.” This was held to mean in
Griffin v. California (1965) (overrul-
ing Adamson v. California, 1947) that if a defendant in a state
trial chooses not to testify, the
Constitution strictly forbids the judge or prosecutor from
making a comment that allows a jury to
draw an adverse inference. This was the federal rule (Wilson v.
United States, 1893). Adverse
comment on silence “is a penalty imposed by our courts for
exercising a constitutional privilege.
It cuts down on the privilege by making its assertion costly. . .
.What the jury may infer given no
help from the court is one thing. What they may infer when the
court solemnizes the silence of

the accused into evidence against him is quite another.” Further,
a prosecutor cannot introduce
evidence that a defendant remained silent, after being read
Miranda warnings, to impeach him
(Doyle v. Ohio, 1976). This due process violation is
inconsistent with the implied guarantee that
silence in response to the Miranda warnings will carry no
penalty.
Carter v. Kentucky (1978) ruled, however, that a trial judge,
when requested by the de-
fense, must instruct the jury that the defendant’s silence does
not lead to a negative inference.
Justice Potter Stewart noted in Carter that a trial judge has “an
affirmative constitutional obliga-
tion” to instruct the jury: “No judge can prevent jurors from
speculating about why a defendant
stands mute in the face of a criminal accusation, but a judge
can, and must, if requested to do so,
use the unique power of the jury instruction to reduce that
speculation to a minimum.” On the
other hand, Lakeside v. Oregon (1978) held that the trial judge
can constitutionally give such a
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protective instruction, over the objection of the defense, if the
judge believes that not to do so
would lead to an unfair trial. This ruling places great faith in
the ability of trial judges to control
their courtrooms to ensure fair trials.
Confrontation, Hearsay, and Cross-examination
A FUNDAMENTAL RIGHT In Pointer v. Texas (1965) a
robbery victim testified in a prelimi-
nary examination at which Pointer was present that Pointer
robbed him. Pointer had no lawyer
and did not try to cross-examine the witness. The witness then

moved to California and did not
return for trial. The state trial court allowed a transcript of the
witness’s statement to be intro-
duced in evidence. The Supreme Court reversed the conviction
and held “that the Sixth
Amendment’s right of an accused to confront the witnesses
against him is [like the right to
counsel] a fundamental right and is made obligatory on the
States by the Fourteenth
Amendment.” Pointer, one of the historic cases that
“incorporated” provisions of the Bill of
Rights (see Chapter 1), intimately linked the right of
confrontation to cross-examination: “It
cannot seriously be doubted at this late date that the right of
cross-examination is included in
the right of an accused in a criminal case to confront the
witnesses against him.” The right of
confrontation and the ability to cross-examine were deemed
essential to a fair trial, the overrid-
ing goal of the Sixth Amendment.
Constitutional scholar Akhil Reed Amar, who notes that all the
provisions of the Sixth
Amendment have to be read together to provide an interlocking
set of guarantees for a fair
adversary trial, offers three reasons why the right to
confrontation is necessary for a fair trial.
First, confrontation in open court may discourage deliberate
perjury by witnesses “who might be
ashamed to tell their lies with the defendant in the room” and
fear that lies will not “stand up
to open scrutiny.” Second, an innocent defendant who hears
honestly mistaken or perjured testi-
mony will be able to figure out the source of the lies and tell his
or her lawyer how to counter
them. Third, the clause “enables the defendant . . . to directly

question [the witness’s story] and
cross-examine it—to show the jury and the public where the
holes are—and to invite the witness
herself to supplement or clarify or revise the story, so that the
jury and the public may hear the
whole truth.”12
HEARSAY AND CONFRONTATION: THE EVOLUTION OF
DOCTRINES In the last three decades
the Supreme Court’s Confrontation Clause jurisprudence has
gone through tremendous changes
that affect police, prosecutors, and defense attorneys in many
areas, including highly sensitive
prosecutions of those accused of child sexual abuse and
domestic violence. The Court’s rulings
have been influenced in part by changes demanded by society to
make it easier to prosecute
alleged abusers. In the midst of this change, Justice Antonin
Scalia’s voice has sounded the
clearest call, both in dissent and in leading the Court, to
revolutionize confrontation doctrine, for
what he has seen as absolute fidelity to the text and history of
the Confrontation Clause.
A bit of background is needed to put recent changes in context.
We start with the common
law hearsay rule. Although it can be traced back to earlier
English precedents, it was really de-
veloped by American and English courts in the first half of the
nineteenth century. The rule ex-
cludes the introduction of out-of-court statements (oral or
written) by someone (a “declarant”)
other than the person testifying, offered in evidence to prove the
truth of the matter asserted.
Legal historian Lawrence M. Friedman suggests that the hearsay
rule, which he describes as

“cancerously intricate,” underwent “explosive growth” in the
early nineteenth century as a result
of a judicial attitude of distrust toward the jury and a desire to
“exclude all shaky, secondhand, or
improper evidence from the eyes and ears of the jury.” The
problem is that excluding all second-
hand evidence would make it very difficult, perhaps close to
impossible, to prove anything in
court. Thus, unlike the “fairly simple and rational” law of
evidence in modern Europe that “lets
most everything in and trust the judge to separate good evidence
from bad,” the Anglo-American
approach “was a bizarre kind of rule—one simple, if Utopian,
idea, along with a puzzle box of
exceptions.”13
In order to make trials workable the hearsay rule has many
court-made and statutory ex-
ceptions. Federal rules of evidence list twenty-eight specific
hearsay exceptions as well as one
“residual” exception where the hearsay is found to be “more
probative” than any other evi-
dence.14 Many of the exceptions are things like routine official
or business records that are relied
on as accurate. Other exceptions, which come into play in
criminal prosecutions, require that a
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declarant be unavailable to testify at the trial, and include dying
declarations, statements against
interest, and evidence previously given at a hearing if the
defendant “had an opportunity and
similar motive to develop the testimony by direct, cross, or
redirect examination.”15 The excep-
tions are based on the central idea that the kinds of evidence
admitted are inherently trustworthy
and can, in any event, still be subject to cross-examination at
trial.

With this background, an historical overview suggested by Prof.
Thomas Reed will
help put the Confrontation Clause cases in context. In the first
era, from 1892 to 1965, the
Confrontation Clause did not apply to the states. The Supreme
Court ruled in 1892, in
Mattox v. United States, that under the clause, prosecution
witnesses must appear in court
and be subject to cross-examination. The one exception noted
was when a witnesses testi-
fied about the crime in an earlier trial but was unavailable in the
present trial. In Mattox, a
first trial was reversed on appeal and a second ended in a hung
jury. The witness, who iden-
tified Mattox at the first trials and was cross-examined, died
before the third trial. The
Supreme Court allowed the introduction of his earlier
testimony. “For more than sixty years
after Mattox, criminal defendants were prosecuted and
convicted using unsworn hearsay
statements by absent witnesses.”16
A flavor of this practice is seen in a case that while not based
on the Confrontation Clause
raised closely aligned issues. Prior to Rovario v. United States
(1957) it was the practice for po-
lice detectives to testify as to what secret informants said and
did as testimony against defen-
dants. The secret informant did not come into court. This was
designed to protect the informant
from any reprisals, but it also prevented the defendant from
cross-examining the one person
who did the most to convict him or her. Rovario held that the
government may not conceal the
identity of an informer who testifies at a trial. The informant

must either be brought into court
to personally testify or his or her testimony cannot be used.
Cross-examining the police detec-
tive “was hardly a substitute for an opportunity to examine the
man who had been nearest to
him and took part in the transaction.” In this case the informant
was involved in the drug trade
and helped set up a deal. The Supreme Court noted that “His
testimony might have disclosed an
entrapment.” Rovario was decided on the basis of the Court’s
supervisory power over federal
cases. Nevertheless, the “Rovario rule” stands for the
proposition that confrontation includes
the right to know the identity of one’s accusers. The Supreme
Court later ruled on related issues
under the Confrontation Clause, holding that an undercover
narcotics officer who testifies
against a defendant must give his or her real name and address.
Not to do so does not give the
defense a full opportunity to gather information that might cast
a shadow on the witness’s cred-
ibility (Smith v. Illinois, 1968). In another case, the Court said
that withholding the fact that a
witness was on probation for juvenile delinquency, when that
fact was relevant to the witness’s
possible bias, unconstitutionally weakened the defendant’s
ability to cross-examine the witness
(Davis v. Alaska, 1974).
The second era of evolving Confrontation Clause jurisprudence,
lasting from 1965 to
1972, revived the clauses’s exclusionary rule. It began with
Pointer v. Texas (1965), discussed
earlier, which incorporated the clause and held that testimony at
a preliminary hearing that had
no chance of being cross-examined was inadmissible at trial.

Pointer was followed by Barber v.
Page (1968) and California v. Green (1970), which clarified the
requirements of the
Confrontation Clause where testimony was given by a witness at
a preliminary hearing. In both
cases the defendant was represented by counsel at the hearing,
and in both cases the lawyer de-
cided that it was better strategy not to cross-examine the
witness.
In Barber, the witness, one Woods, an accomplice, was in a
federal prison at the time of
Barber’s trial. Instead of producing Woods to testify the
prosecution read a transcript of his
testimony at the preliminary hearing to the jury, which
convicted Barber. This violated the
Confrontation Clause. The state argued that Woods was
unavailable because he was outside
the jurisdiction. Finding that it is feasible for state prosecutors
to subpoena federal prisoners
and for federal prosecutors to subpoena state prisoners, the
Court noted that “the State made
absolutely no effort to obtain the presence of Woods at trial
other than to ascertain that he was
in a federal prison outside Oklahoma.” The rule is that the
Confrontation Clause requires a
good faith effort on the part of the prosecution to locate and
produce the witness.
Significantly, the Court said that it would have ruled this way
even if Woods had been cross-
examined at the preliminary hearing. “The right to confrontation
is basically a trial right.
It includes both the opportunity to cross-examine and the
occasion for the jury to weigh the
demeanor of the witness.”

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A later case dealing with the unavailability of a witness found

no Sixth Amendment viola-
tion where the testimony of a witness at an earlier trial was
introduced in a later trial, when the
witness had become a permanent resident of a foreign country;
the state trial court sent a subpoe-
na to the witness’s last address in the United states, and the
state “was powerless to compel his
attendance at the second trial, either through its own process or
through established procedures
depending on the voluntary assistance of another government”
(Mancusi v. Stubbs, 1972).
California v. Green (1970), however, made it clear that prior
testimony of a witness given at
a preliminary hearing is admissible at trial if the defendant was
represented by counsel and had an
opportunity to cross-examine the witness. In this case the
witness, sixteen-year-old Melvin Porter,
who admitted receiving marijuana from Green at the preliminary
hearing, balked when he was
called to testify at the trial and said that he did not have a
memory of the crime and was “unsure of
the actual episode.” The Supreme Court held that the
Confrontation Clause was not violated when
the prosecutor read portions of Porter’s statement at the trial to
refresh his memory. Although he was
“unavailable” for cross-examination as a trial witness, it was
important that Porter was put on the
witness stand and admitted that he made the statement at the
preliminary hearing. This was sufficient
to “afford the trier of fact a satisfactory basis for evaluating the
truth of the prior statement.”
The third era of Confrontation Clause jurisprudence lasted from
1980 to 2004, a period
when under Ohio v. Roberts (1980) the Supreme Court, in

Professor Reed’s colorful metaphor,
effected “a shotgun wedding between the hearsay rule and the
Confrontation Clause.”17 The era
ended with a “divorce” of the clause and the rule in Crawford v.
Washington (2004), ushering in
the fourth and present era of Confrontation Clause rulings.
These will be discussed after an ex-
amination of whether the clause requires face-to-face
encounters in the courtroom.
DOES THE CONFRONTATION CLAUSE REQUIRE FACE-
TO-FACE COURTROOM ENCOUNTERS? In
three cases the Supreme Court ruled that while the defendant
normally must be able to see the
face of a witness at every trial and hearing where the
defendant’s presence is required, excep-
tions are allowed under narrowly defined circumstances. These
cases all involved allegations of
sexual abuse of children and were decided against a background
of greater societal awareness of
such crimes. As a result, legislatures in many states passed laws
that allowed children to testify
without having to see the face of the defendant.
In Kentucky v. Stincer (1987) a man charged with child sexual
abuse against children
eight, seven, and five years of age was excluded from in camera
(in chambers) proceedings
where the judge questioned the children to determine if the two
younger children were compe-
tent to testify. Stincer’s lawyer was present. The Supreme Court
held that Stincer’s right to con-
frontation was not violated because his exclusion did not
preclude effective cross-examination
by defense counsel. Any background questions relevant to the
trial could be repeated on direct

examination of the child witnesses in court. “[T]he critical tool
of cross-examination was avail-
able to counsel as a means of establishing that the witnesses
were not competent to testify, as
well as a means of undermining the credibility of their
testimony.” Justice Marshall, dissenting
(joined by Justices Blackmun and Stevens), wrote, “Although
cross-examination may be a pri-
mary means for ensuring the reliability of testimony from
adverse witnesses, we have never held
that standing alone it will suffice in every case. . . . Physical
presence of the defendant enhances
the reliability of the factfinding process.”
In Coy v. Iowa (1988), the Supreme Court held that a trial in
which two thirteen-year-old
sexual abuse victims testified from behind a screen so as to
avoid eye-to-eye contact with the de-
fendant violated the Confrontation Clause. There were two
possible grounds for the decision: (1)
that face-to-face confrontation, “the irreducible literal meaning
of the Clause,” is absolutely re-
quired in a trial, or (2) that an exception from a face-to-face
encounter could not be imposed by a
“legislatively imposed presumption of trauma” but required
individualized findings that the chil-
dren would be traumatized by testifying while being able to
view Coy. Justice Scalia’s majority
opinion seemed to be based on the first basis, but did indicate,
under a then-prevalent interpretation
of the Confrontation Clause as tightly bound to the hearsay rule,
that the second basis was possible.
Four justices, two dissenting and two concurring, stated that
exceptions to the face-to-face require-
ment were possible. Support for the idea that face-to-face
confrontation is essential to a fair trial re-

sides in the common psychological understanding, as put by
Justice Scalia, that “It is always more
difficult to tell a lie about a person ‘to his face’ than ‘behind
his back.’”
The issue left open in Coy was resolved in Maryland v. Craig
(1990), which upheld (5–4)
the use of one-way closed-circuit television to transmit the
testimony of a child witness where
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492 Chapter 11
procedural safeguards were in place. Under Maryland law,
closed-circuit testimony is used only
where absolutely necessary and only on a case-by-case basis.
The trial court had to establish that
the specific witness, in this case a six-year-old allegedly
victimized by the owner of a child care
center, would suffer serious emotional distress such that she
could not reasonably communicate
in a face-to-face confrontation. The closed-circuit television
hookup allowed the defendant to
observe the demeanor of the witness during examination and
cross-examination, and the defen-
dant was in electronic communication with her defense counsel
at all times. Counsel retained the
right to object to any questions.
Justice O’Connor, for the majority, held that the Sixth
Amendment does not guarantee ab-
solute right to a face-to-face meeting at the trial. Instead, “[t]he
central concern of the
Confrontation Clause is to ensure the reliability of the evidence
against a criminal defendant by
subjecting it to rigorous testing in the context of an adversary
proceeding before the trier of fact”
(Maryland v. Craig, 1990). She noted that although face-to-face
confrontation is an important as-
pect of the right, there are other protections found in the

Maryland practice: (1) the witness must
testify under oath, to impress on him or her the seriousness of
the procedure and to establish the
perjury penalty for lying; (2) cross-examination, the “greatest
legal engine ever invented for
the discovery of truth,” is allowed; and (3) the jury must
observe the witness’s demeanor so as to
assess her credibility. It is these factors together that satisfy the
right of confrontation. The defen-
dant’s rights had to be balanced against the important state
interest of protecting minor victim
witnesses from further trauma and psychological harm.
Justice Antonin Scalia, arguing for a strict interpretation of the
Constitution’s words, wrote
for four dissenters:
Seldom has the Court failed so conspicuously to sustain a
categorical guarantee of
the Constitution against the tide of prevailing current opinion. .
. . The purpose of en-
shrining [the Confrontation Clause] protection in the
Constitution was to assure that
none of the many policy interests from time to time pursued by
statutory law could
overcome a defendant’s right to face his or her accusers in
court. . . .
. . . [The Court’s] reasoning abstracts from the right to its
purposes, and then
eliminates the right. It is wrong because the Confrontation
Clause does not guaran-
tee reliable evidence; it guarantees specific trial procedures that
were thought to
assure reliable evidence, undeniably among which was “face-to-
face” confronta-

tion. Whatever else it may mean in addition, the defendant’s
constitutional right
“to be confronted with the witnesses against him” means,
always and everywhere,
at least what it explicitly says: the “right to meet face to face all
those who appear
and give evidence at trial.” (Maryland v. Craig, 1990, Scalia, J.,
dissenting, empha-
sis added)
The Supreme Court remanded the case to the Maryland Court of
Appeals to determine
whether the trial court made a necessary finding that the use of
the closed-circuit television to cut
off the physical confrontation had occurred. That court ruled in
favor of Sandra Ann Craig in 1991
and reversed her conviction. Shortly thereafter the county
prosecutor decided to not retry her. She
had maintained her innocence throughout the case, and although
she had been free on an appeal
bond since 1987, she and her husband owed about $200,000 in
legal fees even though her attorney
defended her pro bono.18 The charges against Ms. Craig arose
at a time of national hysteria about
the ritual abuse and sexual abuse of children in day care centers
that generated hundreds of
improbable prosecutions against totally innocent people who
worked in day care centers. These
prosecutions and wrongful convictions went on for more than a
decade. This “moral panic,” and
the prosecutions that resulted from it, drenched in public
hysteria, was reminiscent of the 1692
Salem witch trials.19 Viewing Maryland v. Craig (1990) in light
of 1980’s child abuse hysteria
warns against procedural innovations designed to promote
convictions. This erodes trial proce-

dures evolved over the centuries to create a sober courtroom
atmosphere where the search for the
truth is removed from prejudice and popular hysteria. When
procedures to protect the defendant—
presumed to be innocent—are weakened, the worst injustices
can occur.
MARRYING THE CONFRONTATION CLAUSE AND THE
HEARSAY RULE, 1990–2004: THE OHIO
V. ROBERTS ERA Herschel Roberts stayed in Anita Isaacs’s
apartment in Ohio. He was prosecut-
ed for forging her father’s checks and fraudulently using his
credit card. Roberts claimed that Anita
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gave him the checks and cards with permission to use them. At
Roberts’s preliminary hearing Anita
was called as a defense witness and she denied giving Herschel
permission. She was not declared a
hostile witness and so was not subjected to cross-examination.
Roberts’s trial was delayed because
Anita left Ohio, could not be located, was out of touch with her
family, and was last in contact with
a social worker in San Francisco. The prosecutor entered a
transcript of Anita’s preliminary hearing
testimony and Roberts was convicted. His conviction was
reversed by the Ohio Supreme Court on
the ground that there was no real cross-examination.
The U.S. Supreme Court could easily have reversed the Ohio
court by ruling that the use of
the transcript complied with California v. Green (1970) because
the witness (Anita) was avail-
able for cross-examination. Instead, in Ohio v. Roberts (1980)
the Supreme Court revolutionized
Confrontation law by asserting “that the Confrontation Clause is
intimately related to the hearsay
rule because both rules curb the admissibility of hearsay. . . .

This shotgun wedding made all
hearsay declarations subject to the Confrontation Clause.”20 As
a result, “when a hearsay declar-
ant is not present for cross-examination at trial . . . his
statement is admissible only if it bears ad-
equate ‘indicia of reliability.’ Reliability can be inferred
without more in a case where the evi-
dence falls within a firmly rooted hearsay exception. In other
cases, the evidence must be
excluded, at least absent a showing of particularized guarantees
of trustworthiness” (Ohio v.
Roberts, 1980, emphasis added). Finding that Roberts’s defense
lawyer “tested Anita’s testimony
with the equivalent of significant cross-examination,” the
Supreme Court ruled that Anita’s state-
ment was sufficiently trustworthy under hearsay-rule-type
reasoning to be admissible.21 The Ohio
v. Roberts rule thus had the potential to allow a larger number
of out-of-court statements, which
might have been excluded under older confrontation analysis,
into court as evidence.
Confrontation Clause cases decided after Roberts raised
concerns. Thus, wiretap record-
ings of co-conspirators were admitted as having some
“independent evidentiary significance”
under hearsay rules even though the conspirators were available
to be cross-examined, but were
not called, breaking one of the most fundamental confrontation
rules. The Court said that the
unavailability requirement was only limited to cases where the
hearsay declarant gave prior
testimony (United States v. Inadi, 1986). The weirdness of the
reliance on hearsay to resolve
Confrontation Clause cases can be seen in two cases involving
alleged sexual abuse of very

young children. In Idaho v. Wright (1990) the hearsay testimony
of a pediatrician about what
child sex abuse victims said was excluded because the state’s
residual hearsay exception was not
a firmly rooted hearsay exception, which provides a traditional
standard of trustworthiness, for
Confrontation Clause purposes. Justice O’Connor, writing for
the majority that included Justice
Scalia in a 5–4 case, expressed the concern that were the Court
to automatically admit statements
under the residual hearsay exception, it would grant every
statutory hearsay exception “constitu-
tional stature, a step this Court has repeatedly declined to take.”
Contrary to Wright, the Court
admitted hearsay statements in White v. Illinois (1992) made by
a four-year-old victim to her
babysitter, mother, and a police officer under the spontaneous
declaration hearsay exception, and
to a nurse and physician under a hearsay exception for
statements made in the course of securing
medical treatment. The trial court made no finding that the
victim was unavailable to testify.
Considering that the function of the Confrontation Clause is to
guarantee the accuracy of
verdicts, Professor Reed’s point takes on added force: “The
outcome of the Confrontation Clause
objection should not turn on the prosecution’s selection of a
hearsay exception for this
evidence.”22 According to Professor Reed, the case of Lilly v.
Virginia (1999) constituted the
“irretrievable breakdown” of the confrontation–hearsay
marriage forged in Roberts. Although all
of the justices agreed that a co-defendant’s confession could not
be admitted into evidence in the
separate trial of another co-defendant (the confessor was
unavailable to testify because he

claimed the privilege against self-incrimination), they offered
many different reasons. There was
no majority, only a plurality opinion. Four concurring opinions
offered different interpretations
of whether the confession, admitting to a burglary but putting
the entire blame for the homicide
on the co-defendant, really fit under the statement-against-
penal-interest hearsay exception.
The Court seemed to be concerned that its linking of the hearsay
rule with confrontation was
leading states to undermine defendants’ Confrontation Clause
rights. Justice Breyer’s concurring
opinion, noting the opinion of scholars and jurists, “asserted it
was time for the Court to revisit
its jurisprudential support for the modern interpretation of the
Confrontation Clause.” Because
“the Court was unable to agree on the proper doctrinal rule to
support the exclusion of Mark
Lilly’s confession, [its decision] virtually guaranteed a
reexamination of Roberts the next time a
Confrontation Clause case came before the Court.”23
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494 Chapter 11
THE CONFRONTATION CLAUSE–HEARSAY RULE
DIVORCE In Crawford v.Washington (2004)
the Supreme Court realigned Confrontation Cause jurisprudence
by overruling Ohio v. Roberts
(1980) and returning confrontation to its historic roots.
Crawford made it clear that the exclusion
of evidence under the Sixth Amendment did not depend on
whether it might be reliable under a
firmly rooted hearsay exception. Police recorded a statement
from Sylvia Crawford, who ob-
served a fight in which her husband Michael stabbed Kenneth
Lee. Michael confessed and
claimed self-defense, saying he thought he saw a weapon in
Lee’s hand. Sylvia’s statement to the
police, which might have been against her penal interest as an

accessory, tended to undercut
Michael’s self-defense claim. Sylvia could not testify at trial
because Michael claimed the
spousal privilege. Instead, the prosecution played the tape of
Sylvia’s statement to the jury.
The Washington Supreme Court upheld the introduction of the
tape because her statement “bore
guarantees of trustworthiness” because it could have led to her
being charged in the assault. The
U.S. Supreme Court reversed, and excluded Sylvia’s statement
because its introduction violated
Michael Crawford’s right to confront his witnesses.
Justice Scalia’s majority opinion, based on “originalist”
constitutional theory, provided an
exhaustive Confrontation Clause history beginning in English
common law. The prime concern
with confrontation at common law was the introduction of
magistrates’ ex parte examinations of
witnesses, which were introduced as evidence instead of having
witnesses testify. On this basis,
the Confrontation Clause covers only testimonial evidence,
defined as a solemn declaration or
affirmation made for the purpose of establishing or proving
some fact. This includes statements
made to the police about a criminal investigation but not an
offhand, overheard remark. The lat-
ter might be unreliable and thus excludable under the hearsay
rule, but is not the concern of con-
frontation. Testimonial statements include “material such as
affidavits, custodial examinations,
prior testimony that the defendant was unable to cross-examine,
or similar pretrial statements
that declarants would reasonably expect to be used
prosecutorially” (Crawford v. Washington,
2004). The second component of the confrontation rule was well

established in cases like Barber
v. Page (1968) and California v. Green (1970): “that the
Framers would not have allowed admis-
sion of testimonial statements of a witness who did not appear
at trial unless he was unavailable
to testify, and the defendant had had a prior opportunity for
cross-examination” (Crawford v.
Washington, 2004).
The Crawford majority opinion sharply criticized the Roberts
test, which was based on
whether the evidence appeared to be reliable to a judge.
“Reliability is an amorphous, if not en-
tirely subjective, concept. . . . To be sure, the Clause’s ultimate
goal is to ensure reliability of ev-
idence, but it is a procedural rather than a substantive
guarantee. It commands, not that evidence
be reliable, but that reliability be assessed in a particular
manner: by testing in the crucible of
cross-examination.” This pro-defendant ruling by a conservative
Court immediately raised con-
cerns that the prosecution of domestic violence would be
undermined because in many cases
women would not testify against abusers after making
complaints to the police. This, indeed,
was the issue in the next major Confrontation Clause case
before the Court.
Two domestic violence cases were consolidated in Davis v.
Washington (2006). In both
cases women verbally accused their male partner or husband of
domestic violence; in both cases
the women who were assaulted did not testify in trials and
transcripts of their statements were al-
lowed into evidence. The first case involved a transcript of a
911 call, which was analytically di-

vided into two parts. The first concerned the emergency for
which Michelle McCrotty called for
help after being assaulted; the second part occurred after Adrian
Davis, her assailant, left the
house and, with the emergency ended, the operator gathered
more detailed information about the
assault. In the second case, police separated a husband and wife
in their house, and took a state-
ment from Amy Hammon detailing the assault on her. The
defendants in both cases objected that
introducing the statements violated their Confrontation Clause
rights.
The Court provided a definition of testimonial statements that
determined its outcome:
“Statements are nontestimonial when made in the course of
police interrogation under circum-
stances objectively indicating that the primary purpose of the
interrogation is to enable police
assistance to meet an ongoing emergency. They are testimonial
when the circumstances objec-
tively indicate that there is no such ongoing emergency, and
that the primary purpose of the
interrogation is to establish or prove past events potentially
relevant to later criminal prosecu-
tion.” Applying this definition to Michelle McCrotty’s 911
statement, the Court ruled that the
first (emergency) part was not testimonial because it was not
“directed at establishing the facts of
a past crime, in order to identify (or provide evidence to
convict) the perpetrator.” It did not come
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under the Confrontation Clause and was admissible. The second
part of the 911 call was not be-
fore the Court because the Washington Supreme Court ruled
that even if it was testimonial its ad-
mission was harmless error, and Davis did not contest that.

The Supreme Court next held that Amy Hammond’s statements
were testimonial and not
admissible. “It was formal enough that Amy’s interrogation was
conducted in a separate room,
away from her husband (who tried to intervene), with the officer
receiving her replies for use in
his ‘investigat[ion].’” Like the Mirandized questioning in
Crawford, Amy Hammon’s “state-
ments deliberately recounted, in response to police questioning,
how potentially criminal past
events began and progressed.” They “took place some time after
the events described were over.
Such statements under official interrogation are an obvious
substitute for live testimony, because
they do precisely what a witness does on direct examination;
they are inherently testimonial.”
Arguments to the Court in Davis raised the concern that
domestic violence prosecutions
require “greater flexibility in the use of testimonial evidence”
because this type of crime “is no-
toriously susceptible to intimidation or coercion of the victim to
ensure that she does not testify
at trial. When this occurs the Confrontation Clause gives the
criminal a windfall.” Justice Scalia
offered two responses. The first could be seen as a remarkable
statement from a conservative ju-
rist embued with the “crime control” approach (see Chapter 1),
but is in keeping with the Rule of
Law approach embodied in the ancient Roman adage, “let
justice be done even though the heav-
ens might fall”: “We may not, however, vitiate constitutional
guarantees when they have the ef-
fect of allowing the guilty to go free.” Second, this was
followed by a reminder that an exception

to a defendant’s claim under the Confrontation Clause was that
he procured or coerced silence
from the non-testifying witness, a rule established by precedent
and known as “forfeiture by
wrongdoing.”
The Court soon examined an issue under the “forfeiture by
wrongdoing” exception in Giles v.
California (2008). Dwayne Giles was convicted of murdering
his ex-girlfriend Brenda Avie, hav-
ing shot her six times shortly after his niece, from inside a
house, heard them speaking in conver-
sational tones. Avie did not carry a weapon. Giles testified at
his trial and claimed self-defense. He
said that Avie was jealous, had once shot a man, threatened
people with a knife, threatened to kill
him and his new girlfriend, and that he shot when she charged
him, fearing she had something in
her hand. The prosecution introduced into evidence a police
report, taken about three weeks
before the shooting, by a crying Avie. She told police that Giles
had accused her of having an
affair, that they argued, that Giles grabbed her by the shirt,
lifted her off the floor, and began to
choke her, that he punched her in the face and head, opened a
folding knife, and threatened to kill
her if he found her cheating on him. Giles objected to the
introduction of this hearsay statement
but the California Supreme Court ruled it admissible under
Crawford because Giled forfeited his
claim by his wrongdoing.
“The idea underlying the doctrine [of forfeiture by wrongdoing]
is simple: no one should
profit from wrongful conduct. . . . The Confrontation Clause
should be a shield, not a sword.”24

According to Professor Tom Lininger, prior to Giles, a
“minority of courts had conditioned for-
feiture upon the specific intent to silence the victim as a
witness, but the majority had rejected
this approach. Not only was the requirement of specific intent
difficult to apply—few murderers
make a record that their motive is to thwart testimony—but such
a rule also could create an in-
centive for an assailant to kill, rather than merely injure, his
victim in order to cover his tracks”
(footnotes omitted, emphasis added).25
The Court, in a majority opinion by Justice Scalia, held (6–3)
that under the Confrontation
Clause, before admitting a testimonial statement on the grounds
of forfeiture by wrongdoing the
prosecution must show that the defendant intended to prevent a
witness from testifying. The
Court so held because under its originalist interpretation, this
was the meaning of eighteenth-
century English common law cases. “In cases where the
evidence suggested that the defendant
had caused a person to be absent, but had not done so to prevent
the person from testifying—as
in the typical murder case involving accusatorial statements by
the victim—the testimony was
excluded unless it was confronted or fell within the dying-
declaration exception” (Giles v.
California, 2008).
Justice Breyer’s dissent (joined by Justices Stevens and
Kennedy) strenuously disputed the
majority’s interpretation of common law cases and struck a
blow against this kind of originalism
by noting that differences among judges in interpreting “a

handful” of old cases is a reason to not
base constitutional law on “trying to guess the state of mind of
18th century lawyers.” In any
event, all the justices agreed that even if the defendant did not
explicitly say that he killed the
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496 Chapter 11
victim to prevent her testimony, it might be possible to infer the
intent to prevent the victim from
testifying by presenting facts of an abusive relationship. Justice
Scalia wrote that “Acts of
domestic violence often are intended to dissuade a victim from
resorting to outside help, and
include conduct designed to prevent testimony to police officers
or cooperation in criminal pros-
ecutions. Where such an abusive relationship culminates in
murder, the evidence may support a
finding that the crime expressed the intent to isolate the victim
and to stop her from reporting
abuse to the authorities or cooperating with a criminal
prosecution—rendering her prior state-
ments admissible under the forfeiture doctrine” (Giles v.
California, 2008). On that basis the case
was remaded to the California courts for further consideration.
These cases, especially Davis and Giles, have raised real
concerns about the future success of
domestic violence that prosecutions. Professor Lininger has
proposed “practical solutions that will
enable effective prosecutions of domestic violence within the
new parameters set by Giles.” One
would be a rule adopted by lower courts that infers that a
batterer intended to prevent a victim from
testifying (and thus invoking forfeiture by wrongdoing) when
the batterer violated a restraining
order issued for the protection of the accuser. Other per se rules
would find the batterer’s intent to
prevent testimony of the domestic violence that occurred after

the victim made a police report or
initiated any judicial proceedings or upon evidence of a history
of abuse and isolation in the rela-
tionship.26 Such rules would operate within the framework of
Giles to protect domestic violence
victims too traumatized to appear in court.
FORENSIC SCIENCE REPORTS AND CONFRONTATION The
Supreme Court ruled that reports
of government forensic scientists, such as reports giving the
conclusions of the testing of sub-
stances for the presence and quantity of illicit drugs, are among
the “core class of testimonial
statements,” that include “affidavits . . . that declarants would
reasonably expect to be used pros-
ecutorially.” There was no doubt that the drug testing certificate
in Melendez-Diaz v.
Massachusetts (2009) was prepared to be introduced into
evidence to convict the defendant of
cocaine possession. Therefore, under the Confrontation Clause,
scientific examiners are required
to appear in court to be subjected to cross-examination by the
defense as to the accuracy of their
tests and reports. The case did not advance Confrontation
Clause doctrine; it was characterized
by Justice Scalia, writing for the majority (5–4), as “little more
than the application of our hold-
ing in Crawford v. Washington” (2009). The majority countered
several doctrinal objections
raised by Justice Kennedy, dissenting (joined by Chief Justice
Roberts and Breyer and Alito, JJ.),
such as that examiners’ reports are admissible without cross-
examination as official or business
records or that notice-and-demand statutes that require
defendants to indicate before trial when
they intend to call government lab experts shifts the burden of

proof to the defense.
The majority and dissenters disagreed about the practical impact
of the Melendez-Diaz
rule. Prosecutors complained that requiring laboratory experts
to leave their laboratories to testi-
fy would seriously disrupt their work and undermine the
prosecution of drug cases. Justice Scalia
noted that no such disruption occurred in the more than ten
states where lab scientists may be
called to testify. As a practical matter, most drug felonies are
settled by plea, and defense attor-
neys have no incentive to call the examiners and scientists in
cases where they have no reason to
believe that errors or improprieties occurred. “Defense
attorneys and their clients will often stip-
ulate to the nature of the substance in the ordinary drug case. It
is unlikely that defense counsel
will insist on live testimony whose effect will be merely to
highlight rather than cast doubt upon
the forensic analysis. Nor will defense attorneys want to
antagonize the judge or jury by wasting
their time with the appearance of a witness whose testimony
defense counsel does not intend to
rebut in any fashion” (Melendez-Diaz v. Massachusetts, 2009).
From the perspective of accuracy in criminal prosecutions, the
most important part of the
majority opinion is that which sustains the basic purpose of the
confrontation right: “Contrary to
respondent’s and the dissent’s suggestion, there is little reason
to believe that confrontation will be
useless in testing analysts’ honesty, proficiency, and
methodology—the features that are commonly
the focus in the cross-examination of experts” (Melendez-Diaz
v. Massachusetts, 2009, emphasis

added). Tragically, much expert testimony by government
forensic experts has been accepted
without question in the past on the mistaken idea that they are
inherently trustworthy, leading to
convictions of innocent persons. Indeed, forensic error and
fraud is a major cause of wrongful con-
victions.27 This was recognized in Justice Scalia’s opinion,
drawing on a prepublication version of a
major report by the National Academy of Sciences (NAS) that is
critical of much forensic evidence.
The state of Massachusetts argued that forensic reports should
be treated differently than ordinary
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witness testimony because the reports are the result of “neutral,
scientific testing.” Justice Scalia
said that even if there are better ways of testing forensic
evidence, when it is introduced in court,
the dictates of the Constitution, requiring “testing in the
crucible of cross-examination,” cannot be
set aside. This, of course, does not prevent the adversaries from
agreeing to allow a defense expert
retest the evidence.
Drawing on the NAS report and other sources, Justice Scalia
stated that it is not “evident
that what respondent calls ‘neutral scientific testing’ is as
neutral or as reliable as respondent
suggests. Forensic evidence is not uniquely immune from the
risk of manipulation.” The NAS
report, critically examining the work of forensic analysts, found
that “because forensic scientists
[working in police-administered laboratories] often are driven
in their work by a need to answer
a particular question related to the issues of a particular case,
they sometimes face pressure to
sacrifice appropriate methodology for the sake of expediency.”
Some may even “feel pressure—

or have an incentive—to alter the evidence in a manner
favorable to the prosecution.” The worst
documented abuse that has been uncovered is “drylabbing,
where forensic analysts report results
of tests that were never performed.”
Confrontation is one means of assuring accurate forensic
analysis. While it is true, as
the dissent notes, that an honest analyst will not alter his
testimony when forced to
confront the defendant, the same cannot be said of the
fraudulent analyst. . . . Like
the eyewitness who has fabricated his account to the police, the
analyst who pro-
vides false results may, under oath in open court, reconsider his
false testimony. And,
of course, the prospect of confrontation will deter fraudulent
analysis in the first
place. (Melendez-Diaz v. Massachusetts, 2009, internal
citations omitted)
Although cross-examination might not eliminate every instance
of forensic error that gets
to the trial stage, the seriousness of the problem and the
fundamental requirement of confronta-
tion in the adversary system offer strong support for the
correctness of Melendez-Diaz.
Presumption of Innocence and Proof beyond a Reasonable
Doubt
Two fundamental and closely linked rules are central to a fair
trial: (1) a defendant is clothed with
the presumption of innocence, and (2) the state must prove the
defendant guilty of every element
of the crime charged by proof beyond a reasonable doubt. The

text of the Constitution includes
neither rule. They are so fundamental that they were assumed to
be part of the trial-by-jury guaran-
tee. The Supreme Court first linked them in 1970, holding in In
re Winship, a juvenile delinquen-
cy adjudication, that the reasonable doubt standard is essential
to due process.
Reasonable doubt is an elusive concept. A judge need not define
it when instructing jury
members that they must not convict a defendant if they have a
reasonable doubt about guilt.
Unfortunately, definitions of reasonable doubt often confuse
more than they clarify. If a judge
does define it, no special definition is required, but “taken as a
whole, the instructions [must]
correctly convey the concept of reasonable doubt to the jury”
(Holland v. United States, 1954).
In one case, Cage v. Louisiana (1990), the Court held that the
trial judge’s instruction violated
due process because it made the defendant’s task of establishing
a reasonable doubt more diffi-
cult than what the Constitution requires. The instruction
included two phrases—“It must be such
doubt as would give rise to a grave uncertainty” and “It is an
actual substantial doubt—that sug-
gested a higher degree of doubt than is required for acquittal
under the reasonable doubt stan-
dard. Also, a judge’s instruction that tends to make jurors think
that the defendant must raise an
almost certain doubt lowers the prosecutor’s burden of proof.
The test of whether a judge’s defi-
nition of reasonable doubt violates due process is not whether
the jury “could have” applied it in
an unconstitutional manner, but whether there is a reasonable
likelihood that the jury did so

apply the instruction (Estelle v. McGuire, 1991).
The archaic term moral certainty has tended to confuse jurors.
Nevertheless, the Supreme
Court in Victor v. Nebraska (1994) upheld a jury instruction
using that term in defining reason-
able doubt. The use of “moral certainty” did not violate the
defendant’s due process right to a fair
trial because, although the term is rarely used, it means “highly
probable”—which is permissi-
ble. Courts would be well advised to drop such no-longer-used
words in charging juries in the se-
rious task of evaluating trial evidence. A second issue in Victor
was the use of “substantial doubt”
to define reasonable doubt. These words might convey a sense
of near certainty, thus overstating
the degree of doubt necessary for acquittal. Alternatively, the
term could simply mean “that
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498 Chapter 11
[doubt] specified to a large degree.” The Court ruled that taken
in the context of the entire charge
to the jury, the term did not mislead the jury into thinking that
they had to expel virtually all
doubt. The court told the jurors that a substantial doubt does not
mean an imaginary doubt or a
fanciful conjecture.
It is likely that the justices in Victor were not happy with the
instructions in these cases but
decided not to interfere with them, in part because they did not
want to impose a rigid rule on the
states. In a useful concurrence, Justice Ruth Bader Ginsburg
suggested a better instruction draft-
ed by the Federal Judicial Center:
Proof beyond a reasonable doubt is proof that leaves you firmly
convinced of the

defendant’s guilt. There are very few things in this world that
we know with absolute
certainty, and in criminal cases the law does not require proof
that overcomes every
possible doubt. If, based on your consideration of the evidence,
you are firmly con-
vinced that the defendant is guilty of the crime charged, you
must find him guilty. If
on the other hand, you think there is a real possibility that he is
not guilty, you must
give him the benefit of the doubt and find him not guilty.
(Victor v. Nebraska, 1994,
Ginsburg, J., concurring)
THE JURY
Constitutional Requirements
INCORPORATING TRIAL RIGHTS In a unitary country the
judicial system’s features and rules are
defined by its statutes, and in a common law country such as
New Zealand, also by its high court
decisions regarding the constitutionality of court-related
statutes and practices. This is more compli-
cated the United States—a federation where states have their
own complete governments and court
systems, and where a superordinate federal Constitution with a
Supremacy Clause (U.S. Const. art.
VI ¶ 2) gives the national Supreme Court authority to determine
whether state rules comply with the
U.S. Constitution. In the 1960s the Supreme Court
fundamentally reshaped constitutional relation-
ships, extending greater autonomy and civil liberty protections
to American citizens against their
own state and local governments when rights under the U.S.
Constitution were violated. This was

the Due Process Revolution process of incorporation described
in Chapter 1.
When the Supreme Court imposed federal constitutional rules
on the states in cases regard-
ing trial rights, it came up against a diversity of state
procedures. Would the Court impose strict
uniformity on all fifty states, requiring them to follow federal
rules, or would it allow some vari-
ation? The Supreme Court did both. In cases involving jury size
and voting requirements the
Court found that states need not adhere to the federal rules. This
fractured the notion that basic
constitutional rights must be uniform and made it clear that the
direct application of the Bill of
Rights to the federal government could differ somewhat from
the application of the Bill of
Rights to the states through the Fourteenth Amendment Due
Process Clause.
Trial by jury in federal courts is guaranteed by Article III of the
1789 Constitution and by
the Bill of Rights’ (1791) Sixth (criminal cases) and Seventh
(civil cases) Amendments. From
the very beginning of the United States as an independent
nation in 1776, the states had trials by
jury. The Supreme Court’s incorporation of the Sixth
Amendment right to a jury trial in Duncan
v. Louisiana (1968) did not fundamentally restructure criminal
trials. Instead, it decided whether
a state’s trial rules were consistent with the Sixth Amendment.
The standard of constitutionality
in Duncan was the rule required of federal courts.
In Duncan, an interracial fight between teenage boys, sparked
by disagreements over

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