Confrontation Clause Violations as Structural Defects

David Kwasniewski

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Recently, the Supreme Court has become more concerned with finding the appropriate rationale for its decisions than with its decisions’ substantive effects.  In few areas of law is this untimely divorce of rationale and effect more evident than in the Supreme Court’s contemporary Confrontation Clause jurisprudence.  Because the Court has failed to consider how lower appellate courts review Confrontation Clause violations, its newly fashioned rationale for the Confrontation Clause, and its purported expansion of the substantive scope of the right of confrontation, is at odds with the still-mandated blanket application of harmless-error review to all Confrontation Clause violations.  This Editorial and the Note on which it is based argue that unless the Court recognizes that at least some Confrontation Clause violations are structural defects, the remedies available to criminal defendants—and consequently, the de facto scope of the right of confrontation—will remain unchanged.

The Sixth Amendment’s Confrontation Clause gives all criminal defendants the right “to be confronted with the witnesses against” them. 1  The Confrontation Clause involves, at its core, four procedural safeguards—in-person testimony by witnesses, testimony given under oath, testimony that is subject to cross-examination, and testimony permitting a jury to observe a witness’s demeanor. The third safeguard—the requirement that testimony be subject to cross-examination—has been the subject of much recent controversy.  Just thirty years ago, in Ohio v. Roberts,2 the Supreme Court decided that the right of confrontation does not mean that a defendant has the right to cross-examine absolutely everyone.  Instead, the Court held that if a judge could determine that a person’s statement was sufficiently reliable on its own, then the judge could admit that person’s statement without violating the defendant’s Sixth Amendment rights.  In effect, the Court decreed that defendants do not have a right to cross-examination per se, but rather have a right to the goal of cross-examination—reliable testimony.  In 2004, the Supreme Court overruled Roberts in Crawford v. Washington3 and announced a dramatic about-face: the right of confrontation is not “merely” a right to reliable testimony, but rather a right to cross-examination per se.4

Since Crawford, the Court has continued to expand the substantive scope of the right of confrontation, holding that  statements to the police, as well as out-of-court, unconfronted statements of murder victims (except where the accused killed the victim specifically for the purpose of preventing the victim’s testimony) and certificates of laboratory analysts stating that the substances police found on defendants were illegal narcotics, are inadmissible, while only cautiously admitting transcripts of 911 calls.  However, the Court has not yet addressed what I term the procedural scope of the right of confrontation: whether courts reviewing Confrontation Clause violations on appeal should treat these violations as trial errors or structural defects.

Prior to Crawford, all Confrontation Clause violations were trial errors and were subject to harmless-error appellate review.  Under this standard, a violation of the Confrontation Clause at trial would only invalidate the resulting conviction if the violation was harmful; if the error was harmless, the appellate court would affirm the conviction.[1] An error is harmful in this context if the admission of evidence in violation of the Confrontation Clause “affect[s] the reliability of the factfinding process at trial.”5  The Court engages in three different types of harmless-error review.  Some trial errors, such as permitting representation by an attorney with a conflict of interest, require only a cursory inquiry into the harmfulness of the error.  Most errors, like pre-Crawford Confrontation Clause violations, require the prosecution to prove the error harmless beyond a reasonable doubt.  And, a few errors, such as the ineffective assistance of counsel, require the defendant to prove that the error was harmful.  Despite treating these three types of errors differently, the Court has never explicitly categorized them as anything but trial errors.

The only line the Court has explicitly drawn is between trial errors and what are called structural defects.  Structural defects are broadly defined as constitutional violations which “affect[] the framework within which the trial proceeds.” 6  If an appellate court finds a structural defect in the proceeding below, it must overturn the underlying conviction without any further inquiry—in effect, the appellate court presumes the harmfulness of these errors.

Since Crawford, the Supreme Court has not addressed whether all Confrontation Clause violations remain subject to some form of harmless-error review.  The Court treats the substantive scope and procedural scope of the right of confrontation as separate and distinct issues, typically declining to state any opinion on the former despite expounding at great length on the latter.  Although Chief Justice William Rehnquist argued in his partial concurrence in Crawford that the majority provided “implicit recognition that the mistaken application of its new rule . . . is subject to harmless-error analysis,” 7 the Court has not adopted this position despite at least two direct challenges to Delaware v. Van Arsdall since Crawford.  Furthermore, other areas of the Court’s recent Sixth Amendment jurisprudence also have not shed any light on the issue: although United States v. Gonzalez-Lopez8 compared post-Crawford Confrontation Clause violations to violations of the Sixth Amendment right of counsel of choice, which are structural defects, Whorton v. Bockting9 distinguished the right of confrontation from the Sixth Amendment right to appointed counsel largely on the ground that Crawford had little net effect on the reliability of criminal trials.

This Editorial and the Note on which it is based argue that one cannot easily separate analysis of the procedural and substantive scope of the right of confrontation.  If the purpose of the right of confrontation is to prevent the evil of ex parte examinations, a review process that focuses on how a violation has affected the reliability of the proceeding, rather than the egregiousness of the violation itself, is profoundly inadequate.  Accordingly, the Note on which this editorial is based proposes that courts should distinguish between complete and partial Confrontation Clause violations and treat complete Confrontation Clause violations more like structural defects.  This Editorial and the Note on which it is based define a partial Confrontation Clause violation as any improper limit or constraint on a defendant’s cross-examination of a witness, such as prohibiting the defendant from asking particular questions or shortening the time for cross-examination.  A complete Confrontation Clause violation is any action that effectively prevents a defendant from cross-examining a witness at all, such as allowing a prosecutor to play a prerecorded statement of a witness in place of live testimony or excluding the defendant and the defense counsel from certain portions of the proceedings.  Partial Confrontation Clause violations should remain subject to harmless-error review, as the potential variation in their scope and effect may make some violations trivial and requiring the reversal of a conviction for such inevitable, minor errors would consume enormous resources and tarnish the public’s perception of the criminal justice system.  Complete Confrontation Clause violations, however, are never trivial, and the continuing to subject them to harmless-error review, thereby implying that they may be harmless, risks tarnishing the public’s perception of the criminal justice system in the opposite way—by creating the perception that the system does not care about defendants’ rights.  Although a few courts have attempted to make similar distinctions, there has not been serious reconsideration of the requirement that Confrontation Clause violations be subject to harmless-error review in the wake of Crawford.

The Note on which this editorial is based makes three arguments for treating the most egregious Confrontation Clause violations as structural errors.  First, the core concern in harmless-error review is whether the error undermined the reliability of the proceeding.  Thus, except where the witness’s testimony was purely cumulative or irrelevant, or the prosecution’s case was overwhelming, the primary inquiry in the harmless-error analysis of Confrontation Clause violations will be the reliability of the wrongfully admitted evidence.  To make this determination, reviewing courts will have to search for the same sort of “indicia of reliability”10 courts previously required for the admission of out-of-court statements under Roberts.  Because reliable out-of-court statements do not threaten the reliability of the proceedings, the Supreme Court has thus created a right without a (complete) remedy: a court would not overturn any conviction resulting from a Confrontation Clause violation under Crawford unless it also would have violated the Confrontation Clause under Roberts.

Second, treating Confrontation Clause violations like structural defects is more consonant with contemporary interpretations of the Sixth Amendment.  Scholars have characterized the Court’s recent Sixth Amendment jurisprudence as marked by anti-inquisitorialism—the theory that the core evil the Sixth Amendment was designed to prevent was the creation of an inquisitorial, or civil-law-style system of criminal procedure.11  Crawford makes clear that the right of confrontation protects a core safeguard against inquisitorialism, specifically, the right of criminal defendants to ensure the reliability of evidence through active participation in the proceedings—a role the defendant is unable to play in inquisitorial systems.  Permitting judicial-reliability assessments in lieu of cross-examination is precisely the inquisitorial evil Crawford set out to undo. Yet, harmless-error review requires exactly that: a reviewing court must determine the reliability of the evidence to determine whether the error was harmless.  Moreover, by forbidding trial courts from making such reliability determinations, Crawford forces appellate courts to ascertain the reliability of evidence in the first instance with only the cold record before them.

Third, classifying the most egregious Confrontation Clause violations as structural defects comports with the broader justifications of the trial-error/structural-defect dichotomy.  Arizona v. Fulminante12 explained that trial errors are those errors which occur “during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether [the error] was harmless,” while structural defects affect “the framework within which the trial proceeds”13 and are violations of rights so basic that “‘a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair.’”14  In holding that violations of the Sixth Amendment right to counsel of choice are structural defects, the Court has stressed that prejudice is appropriately presumed because “[i]t is impossible to know what different choices the rejected counsel would have made, and then to quantify the impact of those different choices on the outcome of the proceedings.”15  Complete Confrontation Clause violations at least qualify for a rule of automatic reversal; much like violations of the right to counsel of choice, assessing prejudice in the Confrontation Clause context presents courts with the difficult task of assessing the potential impact of a number of hypothetical scenarios.  Violations of this magnitude directly undermine the framework in which the trial proceeds by gutting the core of what it means for a proceeding to be adversarial and by demonstrating a profound lack of respect for the defendant’s role in the criminal process.  This Note on which the Editorial is based further argues that the Court’s unwillingness to challenge the presumption that harmless-error review applies to Confrontation Clause violations stems from a conflation of rules of evidence—which courts almost always consider trial errors—with constitutional rules of criminal procedure that operate like rules of evidence, such as violations of a suspect’s Miranda rights, which courts ought to treat more seriously.

If the Supreme Court continues to decline to revisit Van Arsdall, Crawford will, in practice, offer no greater protection to defendants than Roberts.  That the Court is entirely unaware of this ramification of Van Arsdall or of the emergent trends in harmless-error review in the courts of appeals is unlikely.  Instead, the Court’s singular focus on developing a coherent theory of anti-inquisitorialism, and its consequent treatment of the Confrontation Clause as a rule of evidentiary admissibility rather than a procedural right, has resulted in a right of confrontation that is largely a theoretical one.  Treating complete Confrontation Clause violations as structural errors can solve these identified difficulties of contemporary Confrontation Clause jurisprudence.


David Kwasniewski is a 2008 graduate of Princeton University and a 2011 J.D. candidate at Cornell Law School.

This editorial is based on Mr. Kwasniewski’s Note: David Kwasniewski, Note, Confrontation Clause Violations as Structural Defects, 96 CORNELL L. REV. 397 (2010).

Copyright © 2011 Cornell Law Review.

  1. U.S. CONST. amend. VI.
  2. 448 U.S. 56 (1980).
  3. 541 U.S. 36.
  4. Id. at 67–68.
  5. Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986).
  6. See Arizona v. Fulminate, 499 U.S. 279, 310 (1991).
  7. Crawford, 541 U.S. at 76 (Rehnquist, C.J., concurring).
  8. 548 U.S. 140, 145–48 (2006).
  9. 549 U.S. 406, 419 (2007).
  10. Ohio v. Roberts, 448 U.S. 56, 65 (1980) (quoting Mancusi v. Stubbs, 408 U.S. 204, 213 (1972)).
  11. See David Alan Sklansky, Anti-Inquisitorialism, 122 HARV. L. REV. 1634, 1642–56 (2009).
  12. 499 U.S. 279 (1991).
  13. Id. at 307–08, 310.
  14. Id. at 310 (quoting Rose v. Clark, 478 U.S. 570, 577–78 (1986)).
  15. United States v. Gonzalez-Lopez, 548 U.S. 140, 150 (2006).

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