Toward a Unified Theory of Testimonial Evidence Under the Fifth and Sixth Amendments
69 Pages Posted: 4 Aug 2007 Last revised: 1 Jul 2011
Date Written: June 30, 2011
There is an obvious parallel between the language of the Self-Incrimination Clause and that of the Confrontation Clause: the former forbids the government from forcing a criminal suspect to become a "witness against himself," while the latter requires the government to allow a criminal defendant to confront the "witnesses against him." The irresistible inference is that the word "witness" means the same thing in both Clauses. And, indeed, the Supreme Court has hinged the question of whether someone is a witness in both contexts on whether he or she has given testimonial evidence. Yet, at least at first blush, the Court has used the word testimonial in two very different ways. In the Self-Incrimination Clause context, testimonial refers to statements of fact or value, as opposed to physical evidence or statements introduced merely to prove how they were made (the assertion requirement). Pursuant to the Confrontation Clause, "testimonial" refers to statements made under circumstances objectively indicating some contemplation of later use at trial, as opposed to statements made in response to an ongoing emergency or for some other reason (the contemplation of litigation requirement).
But a closer look reveals that the word testimonial means much the same in both contexts. That is, there is both an assertion requirement and a contemplation of litigation requirement in both. We simply emphasize the former in the Self-Incrimination Clause context and the latter in the Confrontation Clause context. In the latter context, we typically proceed on the assumption that the statement is hearsay - that is, offered for its truth, thus satisfying the assertion requirement - and only if it also satisfies the contemplation of litigation requirement do we say the Confrontation Clause is implicated. By contrast, in the Self-Incrimination Clause context, we typically assume that the contemplation of litigation requirement has been met - because, after all, the evidence has been taken from one suspected of a crime - and then determine whether the evidence constitutes an assertion.
This emerging unified view of testimonial evidence provides the best explanation thus far for much of the Court's Miranda jurisprudence. When we see that the Fifth Amendment's assertion requirement parallels the Sixth Amendment's reliance on the definition of hearsay, it becomes clear that the impeachment exception to Miranda is justified on the ground that statements used to impeach are not offered for their truth. The idea that the Self-Incrimination Clause is implicated only where evidence has been created in contemplation of litigation has the benefit of explaining all of the other exceptions to Miranda: the "public safety," "routine booking question," and "undercover officer" exceptions.
Keywords: Constitutional Law, Criminal Procedure, Fifth Amendment, Self-Incrimination Clause, Sixth Amendment, Confrontation Clause, Testimonial Evidence
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