Dead men (and women) tell no tales

While teaching my high school students about the #SixthAmendment "Confrontation Clause", I was reminded of a case in which we got a great witness statement from the ex-girlfriend of a murder suspect. Her story would push us over the #probablecause edge so we could charge our guy. We flew to #Chicago to interview her and take a sworn statement, and the flight back was filled with hope. That hope was soon dashed, however, when Chicago PD called us to tell us that the young woman had been murdered in a domestic fight. But we had the sworn statement in hand, transcribed and typed by a professional stenographer and signed by the witness. All was well, right? No. Because the confrontation clause clearly gives criminal defendants to the right to "confront their accuser." This means that a live person must testify, so that the defendant can cross-examine them. You can't cross-examine a document. I give you Crawford v. Washington: a man was on trial for killing a man he said raped his wife. The wife would have given important testimony, and, like our Chicago witness, gave the police a tape-recorded sworn statement. Because of marital privilege, she did not come to court to testify, and the prosecution played the tape to the jury instead. Crawford was convicted. The Washington Supreme Court denied his petition for reversal and the conviction stood. But when the U.S. #SupremeCourt heard the argument, there was no ambiguity in their view of the confrontation principle: they voted 9-0 in favor of Crawford. So we lost the ability to use our Chicago witness' testimony. We ended up building our probable cause with other evidence, and eventually made the arrest, but it's important to note: this clause, like many that reside in the language of our #BillofRights, is there to level the playing field. A citizen being charged with a crime is alone and facing the weight and power of the government, and the framers wanted to assure that their new republic operated with greater respect and protection of a person's liberties.