Justice Scalia also authored the United States Supreme Court Confrontation Clause opinion for the seven-justice majority in Crawford v. Washington. Two justices filed an opinion concurring in the judgment but differing in their analysis.
Justice Scalia wrote in relevant part: Petitioner was tried for assault and attempted murder. The State sought to introduce a recorded statement that petitioner’s wife Sylvia had made during police interrogation, as evidence that the stabbing was not in self-defense. Sylvia did not testify at trial because of Washington’s marital privilege. Petitioner argued that admitting the evidence would violate his Sixth Amendment right to be “confronted with the witnesses against him.” Under Ohio v. Roberts, that right does not bar admission of an unavailable witness’s statement against a criminal defendant if the statement bears “adequate ‘indicia of reliability,'” a test met when the evidence either falls within a “firmly rooted hearsay exception” or bears “particularized guarantees of trustworthiness.”
The trial court admitted the statement on the latter ground. The State Supreme Court upheld the conviction, deeming the statement reliable because it was nearly identical to, i.e., interlocked with, petitioner’s own statement to the police, in that both were ambiguous as to whether the victim had drawn a weapon before petitioner assaulted him. The State’s use of Sylvia’s statement violated the Confrontation Clause because, where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is confrontation.
The Confrontation Clause’s text does not alone resolve this case, so this Court turns to the Clause’s historical background. That history supports two principles. First, the principal evil at which the Clause was directed was the civil-law mode of criminal procedure, particularly the use of ex parte examinations as evidence against the accused. The Clause’s primary object is testimonial hearsay, and interrogations by law enforcement officers fall squarely within that class.
The State Supreme Court’s reasoning in permitting the use of this hearsay evidence is suspect. If it were “nearly identical” to already admissible evidence, it is unlikely that the trial prosecutor would unnecessarily risk having the conviction reversed by using cumulative hearsay evidence.
