Face-to-face confrontation: Who should connect the dots?

At the end of last year, the California Supreme Court in People v. Arredondo, 8 Cal. 5th 694 (2019) overturned three sex crimes convictions because the trial court had re-positioned the computer monitor on the witness stand to block the line of sight between the victim-witness and the defendant. Arredondo rests on the Sixth Amendment's "right" of "the accused" "to ... be confronted with the witnesses against him."

The Sixth Amendment right to confront entails, among other things, the right to have a witness "physical[ly] presen[t]" in court. Maryland v. Craig, 497 U.S. 836, 846 (1990). Requiring the witness to be physically present (1) forces the witness to say her piece in the defendant's presence, which is important because, the wisdom goes, "[i]t is always more difficult to tell a lie about a person 'to his face' than 'behind his back,'" Coy v. Iowa, 487 U.S. 1012, 1019 (1988), (2) enables the defendant to be able to "look" "upon" the witness, id. at 1017, and (3) allows this drama to play out before the trier of fact, who may evaluate (a) the witness's demeanor while testifying, California v. Green, 399 U.S. 149, 158 (1970), and (b) the defendant's demeanor while listening to this testimony, Riggins v. Nevada, 504 U.S. 127, 142 (1992) (Kennedy, J., concurring). See generally United States v. Kaufman, 546 F.3d 1242, 1253-54 (10th Cir. 2008).

However, the right to insist upon a witness's physical presence is "not absolute." Craig at 850. In this respect, it is less of a mandate and more of a "preference." Id. at 849. Thus, witnesses in criminal cases may be permitted to testify when their line of sight to the defendant is obstructed (whether by a computer monitor, a screen, or even the prosecutor himself), Coy, at 1014, People v. Sharp, 29 Cal. App .4th 1772 (1994), overruled on other grounds, People v. Martinez, 11 Cal. 4th 434 (1995); when seated facing away from the defendant, People v. Gonzales, 54 Cal. 4th 1234, 1265 (2012); when seated in a different room via one-way or two-way closed circuit television, Craig; People v. Lujan, 211 Cal. App. 4th 1499, 1505-06 (2012); when the defendant is subject to a "no eye contact" order, Kaufman at 1255-56; or, in a move that would make Corey Hart proud, when the witness is wearing dark sunglasses in court, Morales v. Artuz, 281 F.3d 55, 56 (2d Cir. 2002).

These arrangements that secure less than face-to-face confrontation are allowed only if the prosecution establishes that (1) the "denial of such confrontation is necessary to further an important public policy" and (2) "the reliability of the testimony is otherwise assured." Craig at 850. Because "the presence of ... other elements of confrontation -- oath, cross-examination, and observation of the witness's demeanor -- adequately ensures that the testimony is ... reliable," id. at 851 and because the government's "interest in 'the protection of minor victims of sex crimes from further trauma and embarrassment' is ... 'compelling,'" id. at 852, a defendant's right to confront witnesses face-to-face ends up turning on whether the alternative arrangement is "necessary," which turns on whether the prosecution has made a "case-specific" showing that the witness would suffer "emotional distress" due to having to testify "in the presence of the defendant." Id. at 855-56. Expert testimony that testifying would cause the witness trauma that would interfere with her ability to communicate is enough, id. at 856; crying is not, Arredondo, at 32.

These rules were defined by the U.S. Supreme Court in Craig, and Craig explicitly relies upon Ohio v. Roberts, 448 U.S. 56 (1980). But Roberts was subsequently overruled by Crawford v. Washington, 541 U.S. 36 (2004).

This raises the question: How does Crawford's evisceration of Roberts connect to Craig?

Logically, the dots between Roberts's demise and Craig's demise connect because reconciling Craig with Crawford is a "struggle." United States v. Wandahsega, 924 F.3d 868, 879 (6th Cir. 2019). Craig held that a defendant's right to confrontation was "not absolute," and grounded this holding on Roberts's view that the right to confrontation is designed to assure the reliability of criminal verdicts, such that the right to confront -- if reliability is elsewise assured -- may "'occasionally give way to considerations of public policy and the necessities of the case.'" Craig, at 849. Crawford held that a defendant's right to confrontation is a more absolute mandate "admitting only those exceptions established at the time of the founding" and held, contrary to Roberts, that the right to confrontation "commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination." Crawford, at 54, 61. As Sixth Circuit Judge Jeff Sutton recently wrote, "To respect ... one [of these] decision[s] slights the other." United States v. Cox, 871 F.3d 479, 493 (6th Cir. 2017) (concurring).

The 9th Circuit and the California Supreme Court have taken seemingly contrary positions on how they would connect the dots between Crawford and Craig. In United States v. Carter, 907 F.3d 1199 (9th Cir. 2018), the 9th Circuit commented that "[t]he vitality of Craig itself is questionable in light of ... Crawford." Id. at 1206 n.3. In Gonzales, the California Supreme Court eschewed any tension, reasoning that "Crawford and its progeny are limited to 'testimonial' hearsay statements, and say nothing about whether a witness who testifies in person must face the defendant." Gonzales at 1266. Along similar lines, the Wisconsin Court of Appeal ruled that "Crawford addresses the question of when confrontation is required" while "Craig addresses the question of what procedures confrontation requires." State v. Vogelsberg, 2006 W.I. App. 228, at ¶ 16, 724 N.W.2d 649, 654 (Wis. Ct. App. 2006).

While the statements in Gonzales and Vogelsberg describing Craig and Crawford are certainly accurate, at least the 9th Circuit and Judge Sutton are not convinced they constitute a logical basis for reconciling the two decisions: The "elements of confrontation" are "physical presence, oath, cross-examination, and observation of demeanor by the trier of fact." Craig, at 846. Crawford hinges the admissibility of an absent witness's out-of-court "testimonial" statements on the defendant having a prior opportunity to confront her in person, which gives effect to the element of physical presence; Craig gives effect to the element of observation of demeanor. Both implement "elements of confrontation." What is more, Crawford disavows the fundamental principle Roberts (and hence Craig) embraced -- namely, that the confrontation clause is flexible and will admit of exceptions to in-person, face-to-face confrontation as long as the alternative procedure still assures a reliable verdict.

Courts have not wasted much effort deciding how to connect the dots between Crawford and Craig because the U.S. Supreme Court has reserved this task for itself. Where, as here "a precedent of [that] Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions," the lower courts "should follow the case which directly controls, leaving to th[e Supreme] Court the prerogative of overruling its own decisions." Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989).

Aside from being mandatory, this stringent rule of vertical stare decisis seems particularly wise when trying to figure out whether and how to connect the dots between Crawford and Craig for two reasons.

First, it is unclear at this time what image Crawford's dots are trying to create. Crawford narrowed the confrontation clause's scope to "testimonial" statements but left the definition of that threshold term "for another day." Crawford, at 68. In the fractured decisions that followed, whether a statement is "testimonial" has come to turn chiefly on whether the statement was formal and solemn, e.g., Williams v. Illinois, 567 U.S. 50 (2012), leaving the vast swath of informal statements outside the clause's reach.

Second, connecting the dots in a way that extends Crawford's absolute rule to Craig would also connect Crawford to other "elements of confrontation" such as cross-examination, which heretofore has been subject to "reasonable limits." Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). If there is an absolute right to cross-examine, will the "broad discretion of a trial judge" to limit cross-examination cease to exist? Davis v. Alaska, 415 U.S. 308, 316 (1974).

For these reasons, the best court to connect the dots radiating out of Crawford is the court that put it on the page in the first place. 