Originalism Throwdown: Kry takes on Davies on the Court's originalism in Crawford v. Washington

Robert K. Kry, Baker Botts LLP, has posted a new essay, Confrontation Under the Marian Statutes. It appeared in the Brooklyn Law Review. The author notes in the essay that he was a law clerk to Justice Antonin Scalia during the term that Crawford v. Washington was decided. Here's Kry's abstract:

In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court held that the Confrontation Clause prohibits admission of an absent witness's “testimonial” statements against a criminal defendant unless the witness is unavailable to testify in person and the accused had a prior opportunity for cross-examination. That holding was based in part on a claim that, at the time of the framing, those two conditions governed admissibility of pretrial examinations taken under the Marian bail and committal statutes. In his recent article, What Did the Framers Know, and When Did They Know It? Fictional Originalism in Crawford v. Washington, 71 BROOK. L. REV. 105 (2005), Professor Thomas Davies argues that Crawford's historical claim is mistaken, and that a Marian examination was admissible if the witness became unavailable, regardless of whether there had been an opportunity for cross-examination. He acknowledges that a cross-examination standard ultimately emerged in England, but contends that this development occurred too late to have informed original meaning.

This Article responds. I argue that Crawford is well supported by the historical evidence, and that Davies reaches a contrary conclusion only because he ignores relevant evidence, treats highly ambiguous sources as clearly supporting his view, and understates the degree to which post-framing sources reject his position. I first examine the pre-framing sources on which Davies relies. Although those sources show that properly taken Marian examinations were admissible, they do not address whether opportunity to cross-examine was a routine feature of Marian procedure itself and thus an implicit condition of admissibility.

I next present the affirmative case for the cross-examination requirement, focusing first on the prisoner's right to be present. Examining Marian depositions from the London Metropolitan Archives and other historical materials, I conclude that prisoners were routinely present when witnesses were deposed at committal hearings, and that presence was widely viewed as a procedural right by the time of the framing. Finally, I turn to cross-examination as such. I find that the view that a prisoner had a right to cross-examine witnesses at his committal hearing emerged during the second half of the eighteenth century, although there was still disagreement over that point when the Sixth Amendment was framed. Finally, I explain why the Confrontation Clause would have been understood to resolve that dispute in favor of cross-examination: The cross-examination rule was followed in a wide range of other contexts. Courts across the United States uniformly endorsed it after the framing. And the rule is more consistent with the text of the Confrontation Clause itself.