Benjamin N. Cardozo school of law Jacob burns institute for Advanced legal studies 2005 Working Paper No 110 for a Dummy: A Ce Role of History in Judicial Interpretation of the Confrontation Clause Peter Tillers Professor of law Benjamin N Cardozo School of Law 55 Fifth Ave New york NY 10003 United States (212)790-0334( Phone) (212)790-0205(Fax) <petertillers(@verizon.net> This paper can be downloaded free of charge from the Social Science Research Network http://ssrncom/abstract=693862
Benjamin N. Cardozo School of Law Jacob Burns Institute for Advanced Legal Studies 2005 Working Paper No. 110 Legal History for a Dummy: A Comment on the Role of History in Judicial Interpretation of the Confrontation Clause Peter Tillers Professor of Law Benjamin N Cardozo School of Law 55 Fifth Ave. New York , NY 10003 United States (212) 790-0334 (Phone) (212) 790-0205 (Fax) <peter.tillers@verizon.net > This paper can be downloaded free of charge from the Social Science Research Network at http://ssrn.com/abstract=693862
Legal History for a Dummy: A Comment on the role of History in Judicial Interpretation of the Confrontation Clause by peter Tillers I struggled quite a bit over what I should talk about today. I know a little bit about exploratory fact investigation' and about related matters such as induction and what philosophers of science call the logic of discovery. I thought about discussing the worrisome implications of Crawford v. Washington for constitutional regulation of early phases of criminal investigation, about the possibility that Crawford might furthe weaken the already faint prospect that the Court might use the general due process Professor of Law Cardozo School of Law, Yeshiva University See, e.g., A Theory of Preliminary Fact Investigation, 24 U C. Davis L. Rev. 931(1991) 2 Today the notion of a logic of discovery is much discussed. Karl Popper credit for first popularizing this notion. See K Popper, LOGIK DER FORSCHUNG(1934)( the word book rendered the title"The Logic of Discovery, see K Popper, THE LOGIC OF DISCOVERY(Basic Books, 1959) 3158L.Ed2d177,124S.C1354,541US.-(2004) Truth-oriented federal constitutional constraints on preliminary phases of criminal investigation already de minimis. See, e.g., California v. Trombetta, 467 U.S. 479(1984)(no due process violation because government failure to refrigerate clothing for DNA testing was not in bad faith). It is possible-if not inevitable that the skepticism voiced by the Court in Crawford about the possibility of appellate assessment of the trustworthiness of testimonial evidence, augurs continuing or even heightened reluctance by the Court to require the judiciary to police, in the name of due process, the trustworthiness of police investigation. Of course, Crawford does cast a backward shadow it does influence pretrial police investigation -but the size of that shadow may turn out to be rather small because it may turn out that relatively few types of pretrial statements are "testimonial" for purposes of a Crawfordized,or Friedmanized, Confrontation Clause. In any event, under any interpretation of Crawford- whether narrow or broad the Confrontation Clause has no application to tangible evidence that does not contain any symbols deposited by beings that are designed to co as blood, fingerprints, glass fragments, tire tracks, footprints, and images recorded by automatic cameras
Page 1 of 6 Legal History for a Dummy: A Comment on the Role of History in Judicial Interpretation of the Confrontation Clause by Peter Tillers* I struggled quite a bit over what I should talk about today. I know a little bit about exploratory fact investigation1 and about related matters such as induction and what philosophers of science call the logic of discovery.2 I thought about discussing the worrisome implications of Crawford v. Washington3 for constitutional regulation of early phases of criminal investigation,4 about the possibility that Crawford might further weaken the already faint prospect that the Court might use the general due process * Professor of Law, Cardozo School of Law, Yeshiva University. 1 See, e.g., A Theory of Preliminary Fact Investigation, 24 U.C. Davis L. Rev. 931 (1991). 2 Today the notion of a logic of discovery is much discussed. Karl Popper, perhaps inadvertently, deserves credit for first popularizing this notion. See K. Popper, LOGIK DER FORSCHUNG (1934) (the word “Forschung” is best translated as “research” or “investigation,” but the first English translation of Popper’s book rendered the title “The Logic of Discovery,” see K. Popper, THE LOGIC OF DISCOVERY (Basic Books, 1959). 3 158 L. Ed.2d 177, 124 S. Ct. 1354, 541 U.S. -- (2004). 4 Truth-oriented federal constitutional constraints on preliminary phases of criminal investigation are already de minimis. See, e.g., California v. Trombetta, 467 U.S. 479 (1984) (no due process violation because government failure to refrigerate clothing for DNA testing was not in bad faith). It is possible – if not inevitable – that the skepticism voiced by the Court in Crawford about the possibility of appellate assessment of the trustworthiness of testimonial evidence, augurs continuing or even heightened reluctance by the Court to require the judiciary to police, in the name of due process, the trustworthiness of police investigation. Of course, Crawford does cast a backward shadow – it does influence pretrial police investigation – but the size of that shadow may turn out to be rather small – because it may turn out that relatively few types of pretrial statements are “testimonial” for purposes of a Crawfordized, or Friedmanized, Confrontation Clause. In any event, under any interpretation of Crawford – whether narrow or broad – the Confrontation Clause has no application to tangible evidence that does not contain any symbols deposited by human beings that are designed to communicate information – to evidence such as blood, fingerprints, glass fragments, tire tracks, footprints, and images recorded by automatic cameras
Page 2 of6 guarantee to scrub criminal stigation of some pathologies that John Langbein complains about and other pathologies that do not seem to worry him nearly as much. 6 But as alluring as this topic is, it has nothing to do with the topic under discussion by this panel, the role of history in the interpretation and elaboration of the Confrontation Clause. So I have decided to stick to the assigned topic, history But my decision not to go off on a tangent dooms me to play the role of a Harold Carswell; I have to be a kind of academic version of Harold Carswell. Carswell, you may recall, was one of Richard Nixons nominees to the Supreme Court. You will also recall that Senator Roman Hruska spoke out in defense of that unsuccessful nomination and nominee. Hruska, a Phi Beta Kappa graduate of Creighton University, said Even if he [carswell] was mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, arent they, and a little chance? We cant have all Brandeises and Cardozos and frankfurters and stuff like that there. 7 This, alas, is the role I have to play -the role of a Harold G. Carswell -because I know practically nothing about legal history-and the little i once knew I have forgotten John Langbein worries most about the degradation of evidence by partisan lawyers in an adversary system See, e.g., J. Langbein, The German Advantage in Civil Procedure, 52 U. Chi. L. Rev. 823 (1985). See also J Langbein, THE ORIGINS OF ADVERSARY CRIMINAL TRIAL 331-334 (2003) John Langbein does not worry nearly as much about unimaginative investigation. But imagination is essential to effective investigation. See P. Tillers D. Schum, A Theory of Preliminary Fact Investigation, 24 U.C. Davis L. Rev. 931, 934(1991). See also P. Tillers, The Fabrication of Facts in Investigation and Adjudication1995&1998,athttp://tillers.net/fabrication.html Reporter] [byline] [section] [page [column] New York Times(March 17, 1970) But see Bret Stephens, In Praise of Mediocrity, Jerusalem Post (July 16, 2002)("Hruska was on to
Page 2 of 6 guarantee to scrub criminal investigation of some pathologies that John Langbein complains about5 and other pathologies that do not seem to worry him nearly as much.6 But as alluring as this topic is, it has nothing to do with the topic under discussion by this panel, the role of history in the interpretation and elaboration of the Confrontation Clause. So I have decided to stick to the assigned topic, history. But my decision not to go off on a tangent dooms me to play the role of a Harold Carswell; I have to be a kind of academic version of Harold Carswell. Carswell, you may recall, was one of Richard Nixon’s nominees to the Supreme Court. You will also recall that Senator Roman Hruska spoke out in defense of that unsuccessful nomination and nominee. Hruska, a Phi Beta Kappa graduate of Creighton University, said, Even if he [Carswell] was mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they, and a little chance? We can't have all Brandeises and Cardozos and Frankfurters and stuff like that there.7 This, alas, is the role I have to play – the role of a Harold G. Carswell – because I know practically nothing about legal history – and the little I once knew I have forgotten. 5 John Langbein worries most about the degradation of evidence by partisan lawyers in an adversary system such as ours. See, e.g., J. Langbein, The German Advantage in Civil Procedure, 52 U. Chi. L. Rev. 823 (1985). See also J. Langbein, THE ORIGINS OF ADVERSARY CRIMINAL TRIAL 331-334 (2003). 6 John Langbein does not worry nearly as much about unimaginative investigation. But imagination is essential to effective investigation. See P. Tillers & D. Schum, A Theory of Preliminary Fact Investigation, 24 U.C. Davis L. Rev. 931, 934 (1991). See also P. Tillers, The Fabrication of Facts in Investigation and Adjudication, 1995 & 1998, at http://tillers.net/fabrication.html. 7 [Reporter] [byline] [section] [page] [column] New York Times (March 17, 1970). But see Bret Stephens, In Praise of Mediocrity, Jerusalem Post (July 16, 2002) (“Hruska was on to something.”)
Page 3 of6 But what's the point of having an ignoramus on this panel? Being an ignoramus, I struggled over this question. But after due deliberation I concluded that an ignoramus can make a contribution to an understanding of the subject under discussion, the role of history in constitutional argument about the confrontation How can that be? You might think of me as a cheap stand-in for Justice Scalia. I know what some of you are thinking. You're thinking, "I know Justice Scalia or, in any event, I know something about you Tillers, and I know this much: Tillers you're no Scalia I confess that that I'm no Scalia. In particular. I confess that i cant begin to match Scalia's historical learning But this fact just proves my point The papers presented by Professors Kirst and Davies for this conference make a convincing case that Justice Scalia got some important parts of his legal history wrong s Justice Scalia was the author of the Court s opinion in Crawford. Roger W. Kirst, Can History Define the Structure of Confrontation Doctrine?, -Brooklyn L. Rev.-(200- Thomas Y. Davies, What Did the Framers Know, and When Did They Know It? Last Minute Originalism Errors in Crawford v. Washington,-Brooklyn L Rev. -(200-)
Page 3 of 6 But what’s the point of having an ignoramus on this panel? Being an ignoramus, I struggled over this question. But after due deliberation I concluded that an ignoramus can make a contribution to an understanding of the subject under discussion, the role of history in constitutional argument about the confrontation clause. How can that be? You might think of me as a cheap stand-in for Justice Scalia.8 I know what some of you are thinking. You’re thinking, “I know Justice Scalia – or, in any event, I know something about you Tillers, and I know this much: Tillers, you’re no Scalia!” I confess that that I’m no Scalia. In particular, I confess that I can’t begin to match Scalia’s historical learning. But this fact just proves my point. The papers presented by Professors Kirst9 and Davies10 for this conference make a convincing case that Justice Scalia got some important parts of his legal history wrong 8 Justice Scalia was the author of the Court’s opinion in Crawford. 9 Roger W. Kirst, Can History Define the Structure of Confrontation Doctrine?, – Brooklyn L. Rev. – (200- ). 10 Thomas Y. Davies, What Did the Framers Know, and When Did They Know It? Last Minute Originalism Errors in Crawford v. Washington, – Brooklyn L. Rev. – (200-)
Page 4 of6 and that at least some of the mistakes that Scalia made were pretty elementary from a historians point of view I1 Although Professors Kirst and Davies agree that history was misused in Craford, the precise moral they draw from this is different. The argument in Professor Kirst's paper suggests that Professor Kirst believes that the remedy for the Court's misuse of history is for the Court to avail itself of better historical scholarship, to make use of state-of-the-art scholarship that gives a truer(and broader) picture of the original purpose, or intended meaning, of the Confrontation Clause. Professor Davies, by contrast, hints that the appropriate remedy for the Court's abuse of history is for the Court to (largely) abandon the use of history(at least for the interpretation of some constitutional rules or principles) et me first say a few words about the remedy that Professor Kirst's argument suggests, about the notion that the appropriate remedy for the Court's shabby historical Professor Davies argues that Rehnquist, in dissent, did no better: Rehnquist's historical scholarship also suffers from grievous flaws. See Davies, ibid, at Professors Kirst and Davies point to different errors in Justice Scalias legal history and they draw different lessons from the distinct errors that they identify. The errors identified by Professor Davies identifies are more pertinent for purposes of my little peroration -because, although Professor Kirst's paper makes a very plausible case that the Framers saw the Confrontation Clause as a broad-or"political ideal, it is practically incontestable that Justice Scalia did commit the historical errors that davies identifies and it is hard to avoid Professor Davies conclusion that a competent legal historian would not have committed the errors that justice scalia committed Ay paper does not address the question of whether an accurate rendition of the historical record or whether reliance on a different swath of human history would support the result that the Court reached in Crawford. My paper addresses only the question of the extent to which the Court should rely on understanding of centuries-old legal precedents and practices to fashion and interpret constitutional guarantees in the 21 century. For this purpose it is pertinent that the historical account that Justice Scalia cons d was demonstrably incorrect Although I think Scalia got his legal history wrong, it does not necessarily follow that I think that Crawford is an unwelcome decision. This paper does not address the more general question of whether Crawford is a good thing.( My answer would be a qualified one; I would say that the answer depends on how Crawford is read and on its implications. See n 4, above
Page 4 of 6 and that at least some of the mistakes that Scalia made were pretty elementary from a historian’s point of view.11 Although Professors Kirst and Davies agree that history was misused in Crawford, the precise moral they draw from this is different. The argument in Professor Kirst’s paper suggests that Professor Kirst believes that the remedy for the Court’s misuse of history is for the Court to avail itself of better historical scholarship, to make use of state-of-the-art scholarship that gives a truer (and broader) picture of the original purpose, or intended meaning, of the Confrontation Clause. Professor Davies, by contrast, hints that the appropriate remedy for the Court’s abuse of history is for the Court to (largely) abandon the use of history (at least for the interpretation of some constitutional rules or principles). Let me first say a few words about the remedy that Professor Kirst’s argument suggests, about the notion that the appropriate remedy for the Court’s shabby historical 11 Professor Davies argues that Rehnquist, in dissent, did no better: Rehnquist’s historical scholarship also suffers from grievous flaws. See Davies, ibid, at --. Professors Kirst and Davies point to different errors in Justice Scalia’s legal history and they draw different lessons from the distinct errors that they identify. The errors identified by Professor Davies identifies are more pertinent for purposes of my little peroration – because, although Professor Kirst’s paper makes a very plausible case that the Framers saw the Confrontation Clause as a broad – or “political” – ideal, it is practically incontestable that Justice Scalia did commit the historical errors that Davies identifies and it is hard to avoid Professor Davies’ conclusion that a competent legal historian would not have committed the errors that Justice Scalia committed. My paper does not address the question of whether an accurate rendition of the historical record or whether reliance on a different swath of human history would support the result that the Court reached in Crawford. My paper addresses only the question of the extent to which the Court should rely on its understanding of centuries-old legal precedents and practices to fashion and interpret constitutional guarantees in the 21st century. For this purpose it is pertinent that the historical account that Justice Scalia constructed was demonstrably incorrect. Although I think Scalia got his legal history wrong, it does not necessarily follow that I think that Crawford is an unwelcome decision. This paper does not address the more general question of whether Crawford is a good thing. (My answer would be a qualified one; I would say that the answer depends on how Crawford is read and on its implications. See n. 4, above.)