113. Weeding out the anachronisms

Most lawyers have probably heard the term "bill of exceptions" without having any clear idea of what it signified.  If you dig a 19th-century case file out of the  archives, you'll find that a bill of exceptions summarizes or describes the testimony of the witnesses at trial.  Typically it was approved by both counsel and the trial judge, rather in the style of modern record-reconstruction methods.  See Federal Rule of Appellate Procedure 10(c) and (d) .  Appeals were decided on the basis of these summaries rather than a verbatim transcript. 

Here's a sample of the appellate record from a celebrated 1854 Cincinnati trial, State v. Arrison, in which the homicide was accomplished by means of a booby-trapped box.  The victim was named Allison, making this perhaps the most confusing of the great murder trials of the era.  Allison was steward in a medical college, Arrison a student.  The witness is a Dr. Thomas Cummings:

Arrison and I were fellow students; we roomed together in the Kline building, on Fifth near Sycamore; became acquainted with him in January, 1853, and with Allison in the winter.  When Dr. Baker went away Arrison was house surgeon.  Remember the first difficulty between the two.  It was about a book that Arrison had borrowed from deceased and had injured in some way and Arrison claimed that Allison was charging him too much for it.  The latter said he did so because he was a mean man, whereupon Arrison called him a coward and a lie was passed between them, and at last Allison knocked Arrison down.  He fell as if he had been shot; made Allison quit, and got some water and revived Arrison.  This was over a week before the explosion.  The prisoner later said to me that he had a great notion to kill him and afterwards said it was foolish for him to say such a thing [indeed it was!]; was sitting at the hospital door with Dr. Baker when the package was handed to him; took it and shook it and heard something like sand inside.  There was a string around it and a card directed to Mr. Allison.  Think that was the same card.  Was on the pavement waiting for Dr. Baker to return when I heard the explosion.  It was awful; rushed upstairs and saw Dr. Baker get Mrs. Allison out.  The explosion did great damage blowing out windows and setting fire to the room.  Saw Allison in the faculty room and he was very badly wounded.  His face seemed burned, his intestines protruded and he was wounded in the thigh.

(Mr. Allison  died relatively quickly; Mrs. Allison, whose dress ignited in the blast, died only days later, after her arm had been amputated.)

In Crawford v. Washington, the Supreme Court announced a new test for determining whether the admission of hearsay evidence against a criminal defendant is constitutional or not.  The new test, Justice Scalia's opinion assured us, was "faithful to the original meaning of the Confrontation Clause".

In the American court system, Crawford is enforced by appellate courts, who minutely examine verbatim (or, rather, pseudo-verbatim) transcripts of the trial court proceedings, employing multi-factor weighing tests to determine if certain hearsay is, or is not, "testimonial."  (See post 112.)

But, as the excerpt from the Arrison case should make clear, that type of detailed appellate review is very far from anything the Framers (whoever they were - see post 79 and post 81) might have intended.  Bills of exceptions described the subject matter of the testimony rather than the testimony itself, recording its substance while largely or entirely discarding the words employed to convey it.

So if we are truly to return to an original conception of the confrontation clause, shouldn't we do away with transcripts?  Or - the practical equivalent - provide that rulings on confrontation clause challenges to the form of the question, or the phrasing of the answer, are non-reviewable on appeal? 

Comments

[hestone]

Crawford may be enforced most often in the appellate courts, but the Confrontation Clause is about trial testimony. I think the Framers' intent, as Scalia describes it, is that the trial court will enforce and protect the right to confront witnesses, and not that such rights will be reserved to be sorted out at appeal.

As a trial lawyer, I am continually frsutrated by the attitude of some (many?) trial court judges that can be summarized as follows: "I'm going to rule in a way that preserves this prosecution, and you can try to sort it out on appeal." Yeah, its cynical, but I'm not imagining it.

The right to confrontation has to be defended in the trial court. That is where it is intended to be exercised. I don't think that the Framers', or the Crawford court, envisions that Crawford will be enforced at the appellate level based on transcripts. I think they intend that it be enforced before that, when the witness is on the stand, or when the testimony is offered -- before there is any transcript or bill of exceptions to be minutely examined.