In Crawford v. Washington, Justice Scalia introduced confrontation clause 2004, only our nation's third confrontation clause since 1791. (See post 112.) Crawford was not entirely without fatuity: Scalia boasted that his new version of the clause "can hardly be any worse than the status quo. The difference is that the Roberts test [i.e., the 1980 version] is inherently, and therefore permanently, unpredictable."
That boast was "vacuously, smugly, and unconsciously foolish" in a couple ways, because over time the 1980 version of the confrontation clause had become quite predictable and even routine with regard to most types of hearsay; and because Scalia's replacement, CC 3, crawled with ambiguities, undefined terms and self-contradictions the way a neglected house crawls with termites.
But Scalia was right about the inherent uncertainty associated with one particular type of hearsay under CC 2: statements against interest. When Johnny tells an FBI agent, "It was Bob's idea first, but I agreed to rob the bank with him," is he  admitting his own wrongdoing or  trying to pin the blame on Bob? Under CC 2, the obvious answer ("both, you nitwit") was no good, because if Johnny was admitting wrongdoing the jury in Bob's case would be allowed to hear what he said. But the jury wasn't allowed to hear it if it belonged in the second category. So, you see, it had to belong in one category only.
This insistence on keeping reality at bay resulted, as Crawford correctly noted, in a long catalogue of inconsistent decisions.
Well, today Scalia released CC 3.1, the first service pack for our new confrontation clause. In the new case, Davis v. Washington (Scalia has a thing about Washington State - here's yet a third case in which he picked on the justices from Olympia - something about apples, perhaps?), the Court pretends to explain what statements to police qualify as "testimonial" and are therefore barred from admission at trial, unless the victim of the crime agrees to testify against her (and it's usually her) tormentor:
Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
When, objectively, the purpose is this or that? Isn't "purpose" pretty much a subjective inquiry? Why, yes, it is. So we have an objective subjective test. And that's even before you stop to wonder whose subjective purpose we're supposed to examine objectively, the victim's or the cop's.
Now look at all the dichotomies packed into those two sentences:
- Either it's "an ongoing emergency" or it's not. And, of course, everyone can tell the exact moment an emergency becomes a non-emergency. All you have to do is listen for the background music. When it switches from urgent rhythms to swelling strings, and the victim sobs in the arms of her gentle-yet-grimly-determined protector, the emergency is over. Usually happens right before a commercial break.
- Humans at all given times have one "primary" purpose, and all other purposes are secondary. The two are easily distinguished at evidentiary hearings held months after the fact thanks to the fortuity that humans are equipped with memory chips that keep an infallible record of the binary code of which emotions are composed.
- Ongoing emergencies and past events are opposites, so that, for instance, describing what the boyfriend did to get the protective order issued against him is irrelevant to police officers trying to ascertain the seriousness of the most recent confrontation. After all, if he shot her four times and she's been living under an assumed name since he was paroled earlier this year, that couldn't have any bearing on the current situation, could it?
Ms. McCottry provided answers to questions asked by the 911 operator. Some of those answers weren't testimonial, Scalia wrote, because they were "necessary to be able to resolve the present emergency, rather than simply to learn (as in Crawford) what had happened in the past." But Ms. McCottry didn't happen to be on the line with the 911 operator at the very moment her ex-boyfriend began punching her. When she provided information "to resolve the present emergency", she was telling "what had happened in the past." And yet Scalia commands that the two are opposites.
Scalia reaches a height of fatuity when he writes: "In this case, for example, after the operator gained the information needed to address the exigency of the moment, the emergency appears to have ended (when Davis drove away from the premises)." It's a well-known fact, you see, that abusive ex-boyfriends never return.
Making this particular fatuity especially poignant is Scalia's recitation in the earlier part of the opinion that, when officers arrived at the scene, they "observed McCottry’s shaken state, the 'fresh injuries on her forearm and her face,' and her 'frantic efforts to gather her belongings and her children so that they could leave the residence.'" Gosh, just think how upset she would have been if the emergency hadn't been over!
In Crawford, Justice Scalia justifiably ridiculed multi-factor tests, calling the test required by CC 2 "amorphous, if not entirely subjective". But in his new opinion, he constructs just such a multi-part test, listing four factors to be weighed in some vague way by lower courts, while leaving unsettled whether more factors ought to be added to the list at a later date.
Scalia rejects the idea that domestic violence cases pose unusual problems, writing:
This particular type of crime is notoriously susceptible to intimidation or coercion of the victim to ensure that she does not testify at trial. When this occurs, the Confrontation Clause gives the criminal a windfall. We may not, however, vitiate constitutional guarantees when they have the effect of allowing the guilty to go free.
And yet, just a page earlier, in response to Justice Thomas's partial dissent, Scalia writes: "Restricting the Confrontation Clause to the precise forms against which it was originally directed is a recipe for its extinction."
So here are the three positions Scalia has staked out:
- The meaning of the confrontation clause can be grasped only by reference to what the Framers had in mind, based on examples from history familiar to them. (Crawford)
- The meaning of the confrontation clause cannot be grasped only by reference to what the Framers had in mind, based on examples from history familiar to them. (Davis)
- New meanings given to the confrontation clause by modern justices of the Supreme Court are instantly incorporated into it, so that failing to enforce the newly-minted meaning would vitiate the clause itself. (Davis)
There's a term commonly used to describe Scalia's second and third points: "the living Constitution."