Hearsay and the US Constitution

Giles v California [2008] USSC No 07-6053 (25 June 2008) illustrates a tension between the Constitution and the law of evidence in California, and, by analogy, between the Constitution and the Federal Rules of Evidence (FRE). This was not a case where the FRE applied, but the California Evidence Code did.

Broadly, for the details are of little interest outside the USA, a majority of the Supreme Court held that the State court needed to make a further factual finding before the admissibility of some hearsay evidence could be determined. Scalia J, who delivered the opinion of the Court, was not in the majority in one important respect.

This concerns whether the Constitution can be read as accommodating developments in the law of hearsay, or whether its effect remained as the founders (a term I use broadly to include those who amended the Constitution) understood the law to be and wanted it to remain. Scalia J adhered to the Court’s decision in Crawford v Washington 541 US 36, 53-54 (2004) which takes the latter alternative, and said (slip op. p 22) that it is not for the Court to go behind the words of the Constitution to find underlying values which are then used to modify the effect of the guarantees.

That approach, rejecting growth and development, contrasts with rule 102 of the FRE, whereby the rules:

“… shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.”

The FRE rule 807 creates a residual exception to the rule excluding hearsay, but the California Evidence Code does not have a corresponding provision; that is why resort was had in Giles to the Sixth Amendment right of confrontation. The Californian Code does, however, set out rules that would, subject to the factual matter yet to be determined, be applicable to the situation in this case (s 1370) and the Code must be construed liberally and with a view to promoting justice (s 2).

Breyer J, dissenting, referred to the interpretation issue (slip op. p 10):

“…the hearsay rule has always contained exceptions that permit the admission of evidence where the need is significant and where alternative safeguards of reliability exist. Those exceptions have evolved over time, see 2 K. Brown, McCormick on Evidence §326 (2006) (discussion the development of the modern hearsay rule); Fed. Rule Evid. 102 (“[T]hese rules shall be construed to secure . . . promotion of growth and development of the law of evidence”), often in a direction that permits admission of hearsay only where adequate alternative assurance of reliability exists, see, e.g., Rule 807 (the “Residual Exception”). Here, for example, the presence in court of a witness who took the declarant’s statement permits cross-examination of that witness as to just what the declarant said and as to the surrounding circumstances, while those circumstances themselves provide sufficient guarantees of accuracy to warrant admission under a State’s hearsay exception. See Cal. Evid. Code Ann. §1370.”

In Breyer J’s opinion, it was not necessary for the Constitution to set a high threshold for the loss of the right to confront a witness, because State legislatures could (and here, did) establish their own safeguards:

“To lower the constitutional barrier to admission is to allow the States to do just that, i.e., to apply their evidentiary rules with flexibility and to revise their rules as experience suggests would be advisable. The majority’s rule, which requires exclusion, would deprive the States of this freedom and flexibility.” (p. 11)

Breyer J was joined by Stevens and Kennedy JJ. Souter and Ginsburg JJ joined with Scalia J in all except the part of his opinion which dealt with the approach to interpreting the Constitution. This majority favoured a view of the Constitution that permitted development of the exceptions to the hearsay rule.

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