August 2004, Page 18

A Blakely Primer: Drawing the line in Crawford and Blakely
By Jeffrey L. Fisher

Criminal defense lawyers instinctively tend to shun bright-line rules. Concepts like fairness and justice generally are more our style. But, much to the surprise of many, the Supreme Court delivered defendants two big Sixth Amendment victories this year in the form of none other than categorical rules. So maybe it is time for the criminal defense bar to reconsider the utility and equity of advocating bright line rules, at least under certain circumstances.


Crawford v. Washington Case
The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right” to be confronted with the witnesses against him and to have a trial by jury. There is not much wiggle room in that language. Yet in recent years, these two rights had been watered down considerably.

In the confrontation context, the Supreme Court decided in 1980, in Ohio v. Roberts, that the Confrontation Clause did not really require confrontation at all. Rather, when a witness gave an incriminating statement and then became unavailable for trial, it was up to the court to determine whether the statement was “reliable” enough to be admitted without cross-examination. This reliability inquiry turned on the pedigree of the hearsay rule invoked and an assessment of the “totality of the circumstances” surrounding the statement to determine whether the statement had “guarantees of trustworthiness.”

The Roberts standard sounded sensible on its face. After all, courts were directed to allow untested accusations into evidence only when “cross-examination would be of marginal utility.”1 If a judge could confidently conclude that “cross-examination would be a work of supererogation,”2 one could maintain, as the Court had, that excluding the seemingly trustworthy statement because cross-examination was impossible “would be the height of wrongheadedness.”3 So long, in other words, as one is prepared to trust judges to reach fair results, one need not insist upon confrontation in every case.

When I asked the Court in Crawford to abandon the Roberts framework in favor of an unequivocal rule barring the admission of “testimonial” statements when cross-examination is impossible, the federal government pounced on the bright-line nature of my proposed approach. It framed the question presented in its amicus brief as whether the Confrontation Clause imposes a “categorical prohibition” against testimonial statements.4 The answer, the United States contended, flowed inexorably from the inflexible nature of the question: courts cannot always insist upon cross-examination because “Sixth Amendment rights must yield on occasion” to a higher “truth-seeking” goal.5 Or, as Justice O’Connor (one of the two justices who advocated keeping the Roberts framework) put it at oral argument, why change to a categorical rule when judges can still reach fair results under a balancing approach?

The answer that I suggested, and that a seven-justice Court ultimately gave, is that the very nature of some rights, such as the right to confrontation, is a prohibition against trusting judges to do the fair thing. One needed to look no further than the Roberts framework in practice to comprehend why this is so. Under Roberts’ totality of the circumstances test, courts were finding almost anything and everything to indicate trustworthiness sufficient to overlook the inability to cross-examine. “Fact” x would indicate reliability in one case, and “fact act x” would indicate reliability in the next. What is more, even though the right to confrontation developed specifically to prevent testimony from being given behind closed doors — on an ex parte basis or in an affidavit — some state legislatures had enacted hearsay laws that allowed states to introduce their private interviews of victims and witnesses in cases involving allegations of child or domestic abuse, or involving elderly victims.6 So long as courts found the statements reliable, there was no confrontation problem.

Even when specific hearsay laws were not on the books, prosecutors were increasingly allowed to introduce statements that non-testifying witnesses (often alleged accomplices) made during police interrogations, grand jury proceedings, and allocutions.7

In one recent pre-Crawford case in North Carolina, the prosecution simply introduced a witness’ affidavit accusing the defendant of committing the crime.8 It is difficult to conceive of a more direct affront to the history and purpose of the Confrontation Clause.

The Crawford Court said enough was enough. The track record of the Roberts framework, it explained, “reveals a fundamental failure on our part to interpret the Constitution in a way that secures its intended constraint on judicial discretion.”9 And this constraint cannot be enforced properly if it is not enforced categorically: The Framers “knew that judges, like other government officers, could not always be trusted to safeguard the rights of the people.... By replacing categorical constitutional guarantees with open-ended balancing tests, we do violence to their design. Vague standards are manipulable,” the Court continued, and they fail to provide “meaningful protection” against overly subjective or politically charged decisionmaking. 10

Accordingly, the Court ruled that the Confrontation Clause erects an unequivocal rule barring the admission of testimonial statements if the declarant has not been, and cannot be, subjected to full cross-examination.


Blakely v. Washington Case
The Blakely case follows a similar storyline. Everyone knows by now how “sentencing factors” — factors that affect defendants’ sentences but that legislatures often place outside of the normal processes for adjudicating guilt — proliferated in the past few decades. The Supreme Court declared in Apprendi v. New Jersey11 that it would not tolerate attempts to make an end run around the Sixth and Fourteenth Amendments simply by labeling facts that made a crime more serious as sentencing factors.

But the question remained whether legislative sentencing guidelines and other legislation clearly aimed (at least in significant part) at increasing fairness in punishment — not stripping defendants of pre-existing safeguards — should nevertheless be subject to the jury trial and beyond-a-reasonable-doubt guarantees. That, in a sense, was the issue in Blakely. And the Court’s internal debate and ultimate answer echoed the proceedings in Crawford.

Washington State and the federal government argued in Blakely that although the procedures for finding “aggravating facts” under Washington’s sentencing guidelines might formally be susceptible to the Apprendi rule, they were constitutional because they did not disadvantage defendants by moving facts that ordinarily would be part of the guilt phase into the sentencing process. So long as a legislature did not make an offender’s punishment turn too heavily on sentencing factors, the argument went, then legislatures could entrust judges to make some factfinding that increased offenders’ sentences.

This approach made sense to the justices often labeled as “pragmatists” on the Court. Writing for the four Blakely dissenters, Justice O’Connor stated: “If indeed the choice is between adopting a case-by-case approach that takes into consideration the values underlying the Bill of Rights, as well as the history of a particular sentencing reform law, and applying a rigid rule that destroys everything in its path, I will choose the former.”13 Once again, even if these characterizations stacked the deck just a bit, the message was that balancing tests lead to more equitable results than bright-line rules.

And once again, the majority disagreed. Pointing to actual cases, much like in Crawford, showing that a balancing test could not constrain judicial factfinding that increased sentences even “15 times the standard maximum,” the Court held that enforcing Apprendi even in the context of sentencing guidelines was necessary to give “intelligible” content to the Sixth Amendment right to trial by jury. “Whether the Sixth Amendment incorporates [the dissent’s] manipulable standard rather than Apprendi’s bright-line rule depends on the plausibility of the claim that the Framers would have left definition of the scope of the jury power up to judges’ intuitive sense of how far is too far. We think that claim is not plausible at all, because the very reason the Framers put a jury-trial guarantee in the Constitution is that they were unwilling to trust the government to mark out the role of the jury.”

Virtues of Bright-Line Rules
The lesson of Crawford and Blakely is not that criminal defense lawyers (or anyone else) should woodenly advocate bright-line rules to the exclusion of fairness and justice. To the contrary, the lesson is that bright-line rules are often the best way to achieve fairness and justice. Certain rights can be preserved only through strict enforcement of categorical guarantees, and when the Framers drafted certain rights in absolute terms, they had good reason to do so.

Viewed in this light, it may behoove criminal defense lawyers to examine other legal problems in terms of the virtues of bright-line rules. Many already are doing this in the context of terrorism prosecutions. Indeed, it is no coincidence that the four justices who took the hardest line against the government in Hamdi v. Rumsfeld,14 which held that persons who the president calls “enemy combatants” are entitled to some due process, were all in the Crawford majority, and were four of the five in the Blakely majority. And, as issues concerning the constitutionality of the federal sentencing guidelines come to a head following Blakely, the debate ought to focus on whether the federal guidelines can be distinguished in a way that would be true to the clear Sixth Amendment line drawn in that decision.

But bright-line rules can be just as essential — to borrow the Crawford Court’s phrase — in more “run-of-the-mill” cases14 and regarding more straightforward constitutional disputes. For especially in state courts where judges often must stand for election, judicial balancing tests can quickly balance away a defendant’s rights. Think, for example, of the Supreme Court’s dreadful Eighth Amendment “disproportionate punishment” jurisprudence or of any number of Fourth Amendment doctrines.

The simple fact is that defense counsel often is better off arguing that, with all due respect, the Constitution prohibits judicial discretion on a matter, and that it does so for a good reason: because a bright-line rule is essential to give intelligible content to a provision in the Bill of Rights.

Notes
1. Idaho v. Wright, 497 U.S. 805, 820 (1990).
2. Id. at 819 (quotation omitted).
3. White v. Illinois, 502 U.S. 346, 356-57 (1992).
4. Brief for United States as Amicus Curiae, Crawford v. Washington, No. 02-9410, at i.
5. Id. at 6.
6. See, e.g., Snowden v. State, 846 A.2d 36 (Md. App. 2004) (Maryland’s child hearsay statute); Or. Rev. Stat. § 40.460 (domestic violence cases); People v. Pirwani, ___ P.3d ___, 2004 WL 1375310, at *7 (Cal. App. June 21, 2004) (collecting elderly victim statutes).
7. See Crawford, 124 S. Ct. at 1371-72.
8. See State v. Clark, ___ S.E.2d ___, 2004 WL 1485831 (N.C. App. July 6, 2004).
9. 124 S. Ct. at 1373.
10. 124 S. Ct. at 1373-74.
11. 530 U.S. 466 (2000).
12. Blakely v. Washington, 124 S.Ct. 2531 (2004)
13. 124 S. Ct. at 2663 (2004).
14. 124 S. Ct. at 1373.


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