Sixth-Amendment Originalism's Collision Course with the Right to Counsel: What's Titanic, What's Iceberg?

Abstract

The Supreme Court's recent landmark decisions interpreting the Sixth Amendment confrontation clause have taken an originalist turn, by treating common-law procedure contemporaneous with the founding as illustrations of the constitutional text. The Crawford trilogy holds that trial courts should classify prosecution hearsay as either testimonial or nontestimonial. Testimonial statements may be admitted over confrontation clause objection only when the declarant is unavailable at trial and the defendant had an opportunity to cross-examine the declarant before the trial. By contrast, nontestimonial statements are subjected to no confrontation clause scrutiny. In majority opinions authored by Justice Scalia, the Court based this new confrontation clause framework on founding era practice and understanding. My thesis holds that Crawford's version of originalism charts a collision course with long-standing precedents interpreting the Sixth Amendment's right-to-counsel clause. What the Crawford trilogy means by cross examination is cross-examination by counsel, an understanding foreign to the founders. Indeed, consistent application of the Crawford trilogy's interpretative method would deny a Sixth Amendment right to publicly-paid defense counsel even at trial. The recent cases making new law have arisen under the Sixth Amendment, yet the originalist methodology in these cases calls into question Gideon v. Wainwright, one of the few criminal procedure landmarks to enjoy practically unanimous judicial and academic approval. Sixth Amendment jurisprudence therefore has become a house divided against itself. This article asks how that house can stand. The Court might now (1) honestly apply Crawford's methodlogy and overrule Gideon (but this would endanger the innocent and mock the ideal of equal justice); (2) announce an originalist justification for Gideon (but compelling historical evidence points the other way); (3) simply ignore the inconvenient conflict between the felt legitimacy of originalism and the felt desirability of Gideon's result (the most likely outcome, but an illegitimate and hypocritical one); or (4) retain Gideon's holding on due process, not Sixth Amendment grounds, an alternative that would legitimately ground the right-to-counsel cases and enable the rationalization of criminal procedure doctrine more generally. Even a robust reading of due process cannot undo the damage Crawford has done to the public interest in domestic-violence and organized-crime cases. The article therefore concludes with some statutory and administrative responses to the Crawford trilogy, responses that might ameliorate the serious costs those decisions have exacted from the public interest.