Davis Wright Tremaine Attorney Achieves Landmark Decision in Supreme Court Case Involving Sixth Amendment; Court Redefines U.S. Constitution and Confrontation Clause

WASHINGTON—(BUSINESS WIRE)—March 8, 2004—The U.S. Supreme Court, in an instant landmark decision, ruled today that criminal defendants have an absolute right to have prosecutors prove their case through live testimony that is subject to cross-examination. This ruling overturns a series of Supreme Court cases dating back to 1980, in which the Court had said that prosecutors could submit out-of-court testimony when witnesses became unavailable and courts deemed the testimony admissible under state evidence rules and otherwise "reliable."

The case at hand, Crawford v. Washington, involved a Washington state man who was convicted of assault with a deadly weapon. Crawford's wife was present during the violent altercation and gave a tape-recorded statement to the police shortly thereafter indicating that Crawford initiated the scuffle. When Crawford later claimed at his trial that he acted in self-defense, the prosecution introduced the wife's statement to undercut Crawford's claim, even though the wife was unavailable to take the stand to testify in person.

By a unanimous vote, the high court ruled that using the wife's out-of-court statement at trial violated the Confrontation Clause of the Sixth Amendment, which provides that the accused "shall have the right ... to be confronted with the witnesses against him."

More significant, a majority of the justices (from both the conservative and liberal wings of the Court) signed onto an opinion authored by Justice Scalia that declared an end to the Court's prior willingness to allow judicially created exceptions to the right to cross-examine adverse witnesses.

According to Justice Scalia: "When (out-of-court) testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment's protection to the vagaries of the rules of evidence, much less to amorphous notions of 'reliability.'"

Two justices — Chief Justice Rehnquist and Justice O'Connor — agreed that the statement here should have been excluded from evidence, but wrote separately to say that they saw no need to abolish the reliability exception with respect to future cases.

Attorney Jeffrey Fisher of Davis Wright Tremaine in Seattle, Washington agreed to represent the accused, Michael Crawford, on a pro bono basis after the Washington Supreme Court in 2000 ruled that the Confrontation Clause permitted the use of his wife's statement against him.

"I asked the U.S. Supreme Court to take the unusual step of abandoning a line of its own cases—the "reliability" cases—on the ground that this supposed exception to the right to confrontation was untenable in theory and unworkable in practice," Fisher says. "Courts across the country have been using this exception to admit the very kind of out-of-court statements that the Confrontation Clause is designed to prohibit."

Fisher's legal briefs in the Crawford case were unusual because he drew a parallel from a case four centuries old—the treason trail of Sir Walter Raleigh in 1603 England. Raleigh never came face to face with his accuser because the law permitted written statements alone as evidence. Raleigh was convicted and sentenced to death. Legal historians have noted that the Framers of our Constitution had the Raleigh case, and others like it, in mind when they included the Confrontation Clause in the Bill of Rights.

In Crawford's case, Fisher argued that the prosecutors' use of the wife's tape-recorded statement mirrored the use of the out-of-court testimony in Raleigh's case. The Court agreed, holding that introducing such out-of-court "testimonial" evidence could not be squared with the history or text of the Confrontation Clause.

"The Supreme Court's decision will fundamentally alter the way that criminal defendants are tried across the nation," Fisher says. "No more will governments be able to convict people of crimes on the basis of accusations that they are unable to cross-examine."

Contact:
Jeffrey Fisher, Davis Wright Tremaine LLP

For a copy of the opinion: Crawford v. Washington case (No. 02-9410), please contact:
Marilyn Boyd, Davis Wright Tremaine LLP, (206) 622-3150
Brian Levitt, Law/Media Communications, (732) 901-1366