Journal Issue Date: March/April 2021
Journal Name: Vol. 57 No. 2
Our legal culture treats American courts like an orchestra, with the U.S. Supreme Court standing at the center guiding the music. True, the Supremacy Clause justifies this focus as to federal law. But as for all other topics, from state constitutional law to secured transactions, the better picture is Nashville on a pre-pandemic weekend, a city full of jazz trios, rock stars and country bands, each on their own stage playing their own music.
Article 1, section 9 of the Tennessee Constitution guarantees “[t]hat in all criminal prosecutions, the accused hath the right ... to meet the witnesses face to face.” This right traces back over a thousand years1 and ranks in importance alongside the trial by jury.2 Yet the Tennessee Court of Criminal Appeals, in State v. Seale,3 gave center stage for interpreting this right to federal cases interpreting the similar provision in the U.S. Constitution. The result is that a Tennessean’s right to meet witnesses “face to face” is not required but merely “preferred,” so, at least in some cases, an accused may be convicted by the testimony of a witness appearing through two-way video. Seale thought precedent required it to follow federal doctrine, but a close inspection reveals that was a mistake. And while Tennessee’s right to “meet … face to face” probably meant the same thing as the Sixth Amendment right to be “confronted,” it is doubtful that current federal doctrine correctly interprets the right. The Tennessee Constitution guarantees that witnesses testify in the physical presence of the accused.
Our courts must not allow themselves to “be reduced to mere conduits through which federal edicts would flow.”4 The people of Tennessee deserve to hear our state’s constitutional tune.
State v. Seale
The court in State v. Seale examined whether two-way videoconferencing technology satisfied the confrontation rights in the federal and Tennessee constitutions. The defendant in Seale is charged with first-degree murder. The prosecution sought to offer live testimony of four Virginia residents through technologies like Skype and Microsoft Teams, and the trial court granted the request, reasoning it was “exactly the same” as in-person testimony.5 The defendant filed an interlocutory appeal, claiming violation of the U.S. and Tennessee constitutions.6
As for the Sixth Amendment, the Seale Court looked to the U.S. Supreme Court’s opinion in Maryland v. Craig.7 The Sixth Amendment to the U.S. Constitution guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” Craig involved testimony of a child witness by one-way video.8 According to Craig, face-to-face confrontation is “prefer[red],” but can be overcome by a case-specific and witness-specific determination that doing so “is necessary to further an important public policy interest and only where the reliability of the testimony is otherwise assured.”9 The Seale court decided the Craig standard applies to testimony by two-way videoconferencing.10 It is not the same as testifying in person.11 Testimony through a video monitor simply does not have the same “truth-inducing effect” as physical presence.12 Because the trial court failed to determine in the first instance whether a sufficiently important need overcame the preference for in-person testimony, the court reversed and remanded for the trial court to make that determination.13
The Tennessee Constitution received no independent analysis. While the Tennessee Constitution literally says a criminal defendant has the right to “meet the witnesses face to face,” the Seale court deferred to federal doctrine, which, under Craig, makes “face to face” confrontation a “preference.” The Seale court apparently felt bound by the Tennessee Supreme Court’s application of federal Sixth Amendment doctrine to Tennessee’s confrontation right in other cases.14 This was a mistake. Tennessee cases regarding the analogy of federal and state confrontation are admittedly muddled, but no case requires applying federal doctrine to the question of Tennessee’s confrontation right in the context of witness testimony at trial.
Tennessee Confrontation Precedents
The earliest relevant case, Johnson v. State from 1821, examined the interplay between the Tennessee and North Carolina confrontation rights. The court said they were “substantially the same” and that “the expression in both means the same thing.” This is important because the North Carolina Constitution, like the federal constitution, uses the term “confront,” unlike the “meet … face to face” phrase used in the Tennessee Constitution.15
A century and a half later, State v. Armes, 607 S.W.2d 234, 236 (Tenn. 1980), directly addressed the analogy to the federal constitution. Armes unitarily analyzed the federal and state confrontation rights because, a few years earlier, it had purportedly said the “same criteria” apply to both, in State v. Henderson, 554 S.W.2d 117, 119 (Tenn. 1977).16 Henderson actually said no such thing. The Henderson opinion was almost entirely a quotation from the lower court, concluded by a brief, tepid statement that the high court “concur[ed]” with the lower court.17 The Henderson court’s decision was so ambiguous the government sought rehearing, asking the court to clarify whether the basis of its decision was the federal or Tennessee constitution. The court declined to rehear, saying only that both constitutions were violated.18 Nowhere did Henderson say the same criteria apply to the federal and state confrontation questions.19
1990 brought the U.S. Supreme Court’s decision in Maryland v. Craig, discussed above. Just two years later, the Tennessee Supreme Court decided State v. Deuter, 839 S.W.2d 391, 395 (Tenn. 1992), which, like Craig, addressed the right to confrontation in the context of witnesses at trial. The Deuter Court said the Tennessee Constitution’s “face to face” provision “imposes a higher right than that found in the federal constitution.”20 The court’s discussion of the Tennessee Constitution’s confrontation right was substantial, quoting at length from a Pennsylvania case holding that their constitution (identical to the Tennessee Constitution on this point) required rejecting Craig.21 This part of Deuter, however, was all dicta: “[T]he extent to which our constitution exceeds the protection provided by the federal constitution need not be decided in this case.”22
Over the next several decades, numerous cases said that the Tennessee confrontation right follows the federal analysis. One case, Lewis, acknowledged the dicta in Deuter but then noted no case had actually provided greater protection to a defendant under Tennessee’s constitution.23 Importantly, these cases, like Henderson and Armes, were in the context of admission of prior statements, not testimony at trial like in Deuter.24 Two modern cases have recognized that this is a distinction with a difference.
State v. McCoy, a 2014 case regarding admission of a prior statement, claimed to tackle head-on the potential distinction between the Tennessee and federal confrontation clauses.25 As for prior statements, the court concluded “the same standard governs both” the federal and state clauses.26 Interestingly, McCoy did not criticize Deuter’s description of Tennessee’s confrontation right as “higher,” or even call Deuter’s discussion dicta, which would have been accurate, but instead distinguished it. Witnesses at trial are an “entirely different issue” than admission of prior statements, and the McCoy Court was only concerned with the latter.27 McCoy was following the path laid in 2006 by Maclin. Also involving prior testimony, the Maclin Court said that Tennessee has “largely adopted” the federal standard.28 But in the very next paragraph, Maclin asserted the Tennessee Constitution provides a “higher right” “[w]ith respect to the right to physically confront one’s accusers,” recognizing the distinction.29
In sum, Seale was not bound, one way or the other, regarding whether the Maryland v. Craig standard applies to in-person testimony under the Tennessee Constitution. So what should Seale have done? Is Tennessee’s right “higher”? Tennessee’s current constitution dates to 1870, but identical confrontation provisions appear in article 1, section 9 of the 1834 Constitution, and article 11, section 9 of the 1796 Constitution, so the clause should bear the same meaning as it did in 1796.30 A review of founding-era evidence suggests the Tennessee Supreme Court has already stumbled across the answer in dicta: Tennessee’s right to “meet … face to face” is a “somewhat more specific” version of the federal right to “confront.31
Face to Face Confrontation at Ratification
The first thing to notice is the constitutions use different words. Tennessee guarantees “[t]hat in all criminal prosecutions, the accused hath the right … to meet the witnesses face to face.” The Sixth Amendment to the U.S. Constitution guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.” At least some Tennesseans had contemplated a right that used the term “confront.” In 1785, a convention to form the ill-fated state of Franklin adopted a Declaration of Rights lifted from the North Carolina Constitution, guaranteeing a right “to confront the accusers and witnesses with other testimony.”32 Tennessee’s 1796 convention also started with North Carolina’s Constitution,33 but ultimately enacted a constitution using the phrase “meet the witnesses face to face.” Perhaps, in 1796, Tennessee’s framers desired a “higher” confrontation right. Or maybe it was just a stylistic change. Sadly, there are no records of the debates at the 1796 Tennessee constitutional convention,34 and not even a record of the votes regarding the confrontation provision.35 Despite the textual difference, the available evidence36 suggests consonance between a defendant’s right to “confront” and a defendant’s right to “meet … face to face.”
Early Americans believed a defendant’s confrontation right was “vital.”37 As for describing the concept with the term “face to face,” the first to do so in a constitution was John Adams in 1780, drafting the Massachusetts Constitution. The phrase was a natural fit. In the King James Bible, Festus refused to hand Apostle Paul to the Jewish chief priests because Romans did not “deliver any man to die, before that he which is accused have the accusers face to face….”38 Similarly, several English treason statutes required proof by witnesses “face to face.”39 By 1789, six states guaranteed a right to “confront,”40 while two guaranteed a right to “meet … face to face.”41 The following year, Pennsylvania adopted a new constitution, switching its guarantee from a right to be “confronted” to a right to “meet … face to face.”42
When the U.S. constitutional convention proposed a constitution lacking a declaration of rights, it triggered many (now called the Anti-Federalists) to argue against ratification.43 A “chief demand” of the Anti-Federalists was an amendment to preserve the “trial by jury, and incidents such as vicinage and confrontation.…”44 In essays and speeches, Anti-Federalists criticized the proposed constitution for failing to protect an accused’s right to “meet his accuser face to face.”45 The Anti-Federalists won out. The constitution was ratified with an understanding that amendments would thereafter be passed, and Congress then distributed a series of amendments, the Bill of Rights, for ratification by the states.46
The proposed amendments included an accused’s right to be “confronted with the witnesses against him.”47 If a right to “confront” meant something less than the right to “meet … face to face,” one might expect to see evidence of blowback — claims that the proposed amendment provided only a watered-down version of the right several Anti-Federalists had publicly demanded and which several states guaranteed.48 Yet the historical record does not appear to show any publicized discomfort with the proposed Bill of Rights’ use of the “confront” phrase.49
Also consider evidence from John Adams. Before the colonies declared independence, he defended John Hancock before a vice-admiralty tribunal, arguing, “[I]f We are to be governed by the Rules of the common Law. … Every Examination of Witnesses ought to be in open court, in Presence of the Parties, Face to Face.”50 He also drafted the Massachusetts Constitution to guarantee the right to “meet the witnesses against him face to face.”51 Yet only a few years later, he asserted that the safety of a man’s “life, liberty, or property … depend upon ... the confrontation of parties and witnesses. …”52 It seems unlikely he would have chosen the latter phrase if he did not understand it to mean the same thing as meeting a witness face to face.53
Another hint is from a 1787 essay by the Anti-Federalist “Brutus,” who asserted that “the bills of rights of most of the states have declared … [t]he witnesses against him shall be brought face to face.”54 In 1787, eight states had a confrontation provision but only two of them used the “face to face” phrase55 rather than the “confront” phrase, so unless “Brutus” understood those phrases to be coterminous, his characterization of the confrontation right in “most” states was quite incorrect.
Perhaps it could be argued that familiarity with the phrase “face to face” was regional. But the state constitutions guaranteeing a “face to face” right by 1796 included New Hampshire, Delaware, Massachusetts, Pennsylvania and Kentucky. And the First Continental Congress, composed of delegates from all 13 colonies except Georgia,56 used the term. Hoping to convince the residents of Quebec to join the cause, the Congress described the rights they sought to secure as including a right to trial by jury “face to face,” suggesting the term had purchase across the colonies.57
Finally, the Tennessee Supreme Court58 and U.S. Supreme Court59 have both defined the scope of a defendant’s confrontation right in reference to a pre-existing right at the time of the founding.60 It seems unlikely Tennessee’s framers sought to draw upon a different source than the federal framers. Give the same sheet music to two pianists and you should expect both to play the same notes.
Much of this evidence is indirect and considered separately proves little. But aggregating it leads to a conclusion that Tennessee’s right to “meet … face to face” was understood in 1796 to mean the same thing as the Sixth Amendment’s right to “confront,” the former being a more concrete and specific version of the latter. Deuter was probably wrong that the Tennessee Constitution’s confrontation right is “higher” than the federal constitution’s — wrong, at least, to the extent Deuter was describing the meaning of federal and Tennessee confrontation rights at the time of the founding. Maybe Deuter was instead contrasting Tennessee’s confrontation right with Maryland v. Craig’s interpretation of the federal right. Just because the provisions ought to be interpreted similarly does not mean the federal courts have gotten it right. Tennessee courts must analyze whether the U.S. Supreme Court’s interpretation in Craig harmonizes with our state’s constitution before giving it the solo.
Tennessee’s Confrontation Melody
Indeed, Maryland v. Craig is not consistent with Tennessee’s constitutional tune. Craig did not engage with the evidence, discussed above, suggesting that the right to “confront” requires no less than the right to meet “face to face.”61 Also, Craig treated the idea of meeting witnesses “face to face” as judicial gloss, while Tennessee’s framers left no doubt, inscribing the words into the Constitution’s text.62
The two core justifications Craig offered are not compelling under Tennessee law. First, Craig argued the Sixth Amendment’s purpose is to obtain reliable evidence, and other means besides face to face testimony may be used to ensure reliability.63 In contrast, the Tennessee Constitution, which while having the aim of obtaining a fair trial, actually guarantees specific procedures to be followed.64 The procedure at issue here is that trial witnesses must meet the accused face to face. Two-way video does not comply. Recall John Adams’ argument that, under the common law, “Every Examination of Witnesses ought to be in open Court, in Presence of the Parties, Face to Face.”65 Perhaps Adams had read a recent case from the King’s Bench, Rex v. Vipont, in which defense counsel argued successfully that a conviction could not stand because “no evidence is stated to have been given in the presence of the defendants,” that the defendants “had a right of cross-examining the witnesses, upon their giving verbal evidence face to face.…”66 These arguments accord with numerous English and American treatises that framed witness confrontation as involving physical presence.67
Second, Craig claimed a right to confront “face to face” is not absolute, but subject to a balancing analysis since certain prior statements like dying declarations are permitted yet cannot be made face to face.68 But even if some kind of balancing is appropriate for prior statements, a question this article does not answer, it would not establish that the physical presence of trial witnesses may similarly be balanced away. In Sam v. State, 31 Tenn. 61, 64-65 (1851), the court explained a juror cannot secretly give testimony during deliberations but “must be sworn as a witness, and give his testimony openly in court.” This was “emphatically” true for criminal prosecutions because of the “absolutely secured” right to “meet the witnesses face to face.”69
Moreover, the Tennessee Constitution enumerated a pre-existing right that had pre-existing limitations. In Anthony v. State, 19 Tenn. (Meigs) 265 (1838), a defendant claimed that admission of a dying declaration violated his right to meet the declarant face to face. The court disagreed. Exclusion of dying declarations would be an innovation, and the Constitution meant only to “preserve and perpetuate” a right to confront which had been “fully acknowledged and acted upon before and at the time of our Revolution.”70 Other early Tennessee confrontation cases used similar logic, as have cases involving other constitutional rights. Consider the closely related “right of trial by jury” in article 1, section 6. No exceptions to that guarantee are stated, yet its scope is limited to cases for which a jury trial was available at Tennessee’s founding.72 The right to meet the witnesses face to face also has a scope. Admission of evidence outside that scope does not make the core of the right subject to judicial balancing.73
The Tennessee Supreme Court’s authority as the “final arbiter of the Tennessee Constitution”74 comes with a correspondingly solemn duty to give it full voice. Tennesseans, especially those facing imprisonment or death, should receive no less than what our state’s great Constitution guarantees. The court’s wisdom from more than 170 years ago resonates today: “the success of the defence is all important to the individual accused.”75
Wise or foolish, the physical presence of witnesses is a requirement engraved in our Constitution, “a rule to be demanded in order to guarantee ultimate fairness.”76 It does not matter that Tennessee’s founders could not have dreamed of testimony by two-way video. Our Constitution guarantees to criminal defendants a specific procedure to be followed, to “meet the witnesses face to be face,” not whatever procedure the judiciary or legislature thinks is a sufficient approximation.
Under Seale, Tennessee courts must follow Maryland v. Craig regardless of its discordance with Tennessee’s Constitution. The Tennessee Supreme Court needs to take the stage and clarify that the Tennessee Constitution guarantees the physical presence of trial witnesses in criminal cases.
NATHAN L. “NATE” KINARD practices trials and appeals in Chattanooga at Chambliss, Bahner & Stophel, P.C. He has a Bachelor of Music in Piano Performance and Political Science from Vanderbilt University, and graduated summa cum laude from William & Mary Law School in 2015. Nate served as a law clerk for the Hon. Andrew J. Kleinfeld on the U.S. Court of Appeals for the Ninth Circuit. The views expressed here are his own.
1. See Frank R. Herrmann & Brownlow M. Speer, “Facing the Accuser: Ancient and Medieval Precursors of the Confrontation Clause,” 34 Va. J. Int’l L. 481, 545 (1994).
2. Kendrick v. State, 29 Tenn. (10 Hum.) 479, 485 (1850).
3. No. M2019-01913-CCA-R9-CD, 2020 WL 4045227 (Tenn. Ct. Crim. App. July 20, 2020).
4. Miller v. State, 584 S.W.2d 758, 760 (Tenn. 1979), overruled on other grounds by State v. Pruitt, 510 S.W.3d 398 (Tenn. 2016).
5. Seale, 2020 WL at *1-4.
6. Id. at *4.
7. Id. at *8.
8. Maryland v. Craig, 497 U.S. 836, 841 (1990).
9. Id. at 850, 855-56.
10. Seale, 2020 WL at *8.
12. Id. at *7-8 (quoting United States v.
Bordeaux, 400 F.3d 548, 554 (8th Cir. 2005)).
13. Id. at *9.
14. Id. at *4-6.
15. Johnston v. State, 10 Tenn. (2 Yer.) 58, 59 (1821).
16. The long gap is because the Confrontation Clause was not incorporated against the states until Pointer v. Texas, 380 U.S. 400, 406 (1965).
17. Henderson, 554 S.W.2d at 122. The lower court’s opinion identified criteria applicable to federal confrontation doctrine, analyzed the statements at issue under those criteria, and then concluded without any further explanation that “they must likewise fall under the guarantees of the Tennessee Constitution.” Id. at 119-21.
18. Id. at 123.
19. Id. at 119.
20. Deuter, 839 S.W.2d at 395. Constitutional rights do not have length, width or height. The term “higher” probably meant more favorable to the defendant.
21. Id. at 395-96 (quoting Commonwealth v. Ludwig, 594 A.2d 281, 284 (Pa. 1991)).
22. Id. at 396.
23. State v. Lewis, 235 S.W.3d 136, 144 (Tenn. 2007).
24. State v. Davis, 466 S.W.3d 49, 68 (Tenn. 2015); State v. McCoy, 459 S.W.3d 1, 12 (Tenn. 2014); State v. Dotson, 450 S.W.3d 1, 62 (Tenn. 2014); State v. Parker, 350 S.W.3d 883, 897 (Tenn. 2011); State v. Franklin, 308 S.W.3d 799, 809 (Tenn. 2010); State v. Cannon, 254 S.W.3d 287, 301 (Tenn. 2008); Lewis, 235 S.W.3d at 144; State v. Maclin, 183 S.W.3d 335, 343 (Tenn. 2006), abrogated on other grounds by Davis v. Washington, 547 U.S. 813 (2006); State v. Middlebrooks, 840 S.W.2d 317, 332 (Tenn. 1992); State v. Causby, 706 S.W.2d 628, 631 (Tenn. 1986).
25. McCoy, 459 S.W.3d at 12 (stating that the court was “address[ing] the nature and extent of confrontation rights afforded by the state and federal constitutions”).
26. Id. at 14 (quoting Dotson, 450 S.W.3d at 62).
27. Id. at 12-13.
28. Maclin, 183 S.W.3d at 343. The “largely” qualifier mildly infers Tennessee’s confrontation analysis does not entirely follow the federal analysis. Several cases have also used that qualifier. See Lewis, 235 S.W.3d at 144 (quoting Maclin, 183 S.W.3d at 343); Parker, 350 S.W.3d at 897 (same); Franklin, 308 S.W.3d at 809 (same). Maclin got the term from State v. Bush, 942 S.W.2d 489, 511 n.2 (Tenn. 1997).
29. Maclin, 183 S.W.3d at 343; see also State v. Stephenson, 195 S.W.3d 574, 591 (Tenn. 2006) (stating, without explanation, that Tennessee’s confrontation right is “higher”), overruled on other grounds by State v. Watkins, 362 S.W.3d 530 (Tenn. 2012).
30. See Eason v. State, 65 Tenn. 466, 469-71 (1873).
31. State v. Pilkey, 776 S.W.2d 943, 949 (Tenn. 1989); cf. Commonwealth v. Bergstrom, 524 N.E.2d 366, 371 n.9 (Mass. 1988) (referring to the Massachusetts Constitution’s confrontation provision as using “more explicit language to convey unequivocally their meaning”).
32. See Samuel Cole Williams, History of the Lost State of Franklin 340 (rev. ed., 1933); Joshua W. Caldwell, Studies in the Constitutional History of Tennessee 50 (2d ed. 1907); John Haywood, The Civil and Political History of the State of Tennessee from Its Earliest Settlement up to the Year 1796 170 (Nashville, W.H. Haywood 1891) (1823).
33. Caldwell, supra note 32, at 133-34.
34. Edward T. Sanford, The Constitutional Convention of Tennessee of 1796 17 (Nashville, Marshall & Bruce 1896) (citing J.G.M. Ramsay, The Annals of Tennessee to the End of the Eighteenth Century 652 (Charleston, John Russell 1853)).
35. See Lewis L. Laska, “A Legal and Constitutional History of Tennessee, 1772-1972,” 6 Mem. St. U. L. Rev. 563, 593 (1977).
36. A full investigation of primary, founding-era sources is beyond the scope of this article.
37. See 30 Charles Alan Wright & Kenneth W. Graham Jr., Federal Practice and Procedure § 6346, at 611 (1997). The historical background for that belief is far too rich to relate here. See generally id. §§ 6342-46; Herrmann & Speer, supra note 1.
38. Wright & Graham, supra note 37, § 6342, at 240 & n.285 (quoting Acts 25:16 (King James)).
39. Sedition Act 1661, 13 Car. 2 c. 1, § 5 (Eng.); Act Against Seditious Words and Rumors 1580, 23 Eliz. c. 2, § 13 (Eng.); Treasons Act 1571, 13 Eliz. c. 1, § 9 (Eng.); Act Whereby Certain Offenses be Made Treason 1558, 1 Eliz. c. 5, § 10 (Eng.); Act of Supremacy 1558, 1 Eliz. c.1, § 21 (Eng.); see Wright & Graham, supra note 37, § 6342, at 227.
40. Va. Decl. of Rights § 8 (1776); Penn. Decl. of Rights § IX (1776); Del. Decl. of Rights § 14 (1776); Md. Decl. of Rights § XIX (1776); N.C. Decl. of Rights § VII (1776); Vt. Const. ch. I, § X (1777).
41. Mass. Const. pt. 1, art. XII (1780); N.H. Const. of 1783, pt. 1, art. 1, § XV (1784). Note that Kentucky’s 1792 constitution and Ohio’s 1802 constitution also used the “meet … face to face” phrase. Ky. Const. art. XII, § X (1792); Ohio Const. of 1802, art. VIII, § 11 (1803).
42. See Penn. Const. art. IX, § IX (1790). Delaware made a similar change in 1792. See Del. Const. art. 1 § 7 (1792).
43. See Wright & Graham, supra note 37, § 6347, at 661-62, 713.
44. Id. at 704-05.
45. Id. at 709-10 (discussing a prominent speech at the Massachusetts ratifying convention). An essay by “Federal Farmer” argued in favor of enumerating “particular essential rights” including “a right to … meet the witnesses against him face to face.” Id. at 724-25. An essay by “Brutus” exclaimed “the great importance ... that the witnesses should be examined face to face.” Id. at 734. “Brutus” elsewhere asserted the proposed constitution failed to provide security “[t]hat he shall see the witnesses against him face to face ....” Id. at 726. Note that some of the Anti-Federalists suggested constitutional amendments before ratification using the exact “confront” phrase that ultimately appeared in the Sixth Amendment. See id. at 692-93.
46. Id. at 713, 760-66.
47. Id. at 764.
48. The persuasiveness of this argument depends on the probability that blowback would occur and that evidence of it would remain. See generally Douglas Walton, “Nonfallacious Arguments from Ignorance,” 29 Am. Phil. Q. 381 (1992).
49. See Wright & Graham, supra note 37, § 6347, at 766-76 (summarizing the response to the proposed amendments related to confrontation issues, not noting any opposition to the use of the “confront” phrase).
50. Id. § 6345, at 521-22.
51. Id. § 6346, at 601, 612.
52. 1 John Adams, A Defence of the Constitutions of Government of the United States of America 375 (London, C. Dilly & John Stockdale 1787).
53. See also Murl A. Larkin, “The Right of Confrontation: What Next?,” 1 Tex. Tech L. Rev. 67, 76-77 (1969) (asserting that George Mason, who drafted the Virginia Declaration of Rights to include a right to “confront,” “doubtlessly meant to require the meeting of witnesses face to face”).
54. Wright & Graham, supra note 37, § 6347, at 686-87 (emphasis added). “Brutus” called this right a “necess[ity].” Id.
55. See supra notes 40-41.
56. 1 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law — Substance and Procedure § 1.1(b) (2012).
57. Larkin, supra note 53, at 73.
58. Anthony v. State, 19 Tenn. (Meigs) 265, 278 (1838); State v. Atkins, 1 Tenn. (1 Overt.) 229, 229 (1807) (per curiam), overruled on other grounds by Kendrick v. State, 29 Tenn. (10 Hum.) 479, 485 (1850).
59. See Robert Kry, “Confrontation Under the Marian Statutes: A Response to Professor Davies,” 72 Brook. L. Rev. 493, 552-53 (2007).
60. Some Tennessee rights are keyed to North Carolina law as it stood in 1796, see Newport Hous. Auth. v. Ballard, 839 S.W.2d 86, 88 (Tenn. 1992), potentially being a source of distinction. I am aware of no such distinction here. It should also be noted there is dispute about the degree to which the confrontation right was English or uniquely American. Compare John G. Douglass, “Beyond Admissibility: Real Confrontation, Virtual Cross-Examination, and the Right to Confront Hearsay,” 67 Geo. Wash. L. Rev. 191, 235-36 (1999), with Randolph N. Jonakait, “The Origins of the Confrontation Clause: An Alternative History,” 27 Rutgers L.J. 77, 81 (1995).
61. Justice Scalia’s scathing, four-Justice dissent did argue that to “confront” meant meeting “face to face,” but based primarily on 20th-century precedent. See Maryland v. Craig, 497 U.S. 836, 862 (1990) (Scalia, J., dissenting).
62. See State v. Vineyard, 958 S.W.2d 730, 734 (Tenn. 1997) (noting that a textual difference is a basis to disagree with federal interpretations of similar federal constitutional provisions).
63. Craig, 497 U.S. at 845-47.
64. State v. Henley, 41 S.W. 352, 360 (Tenn. 1897). Justice Scalia also made this argument, vindicated in Crawford. See 30 Daniel D. Blinka, Federal Practice & Procedure § 6386 (Westlaw, Oct. 2020 Update).
65. See text accompanying supra note 50.
66. Rex v. Vipont (1761) 97 Eng. Rep. 767, 767-69. Vipont was reported in 1766 in 2 James Burrow, Reports of Cases Adjudged in the Court of the King’s Bench 1163 (London, J. Worrall & B. Tovey 1766), a volume which Adams acquired at some point. See Catalogue of the John Adams Library in the Public Library of the City of Boston 41 (Lindsay Swift ed., 1917).
67. See 3 Joseph Story, Commentaries on the Constitution of the United States 662 (Boston, Hilliard, Gray & Co. 1833) (explaining the Sixth Amendment requires witnesses to give testimony “(at least in capital cases) in the presence of the accused ….”); Zephaniah Swift, A Digest of the Law of Evidence in Civil and Criminal Cases 125 (Hartford, Oliver D. Cooke 1810) (“In criminal cases, it is a very important principle, that no evidence shall be received against a prisoner but in his presence.”); 4 William Hawkins, A Treatise of the Pleas of the Crown 418 (Thomas Leach ed., London, G.G., J. Robinson & J. Butterworth 7th ed. 1795) (“It is a settled rule, that in cases of life no evidence is to be given against a prisoner but in his presence.”); William Boscawen, A Treatise on Convictions on Penal Statutes 62 (London, E. & R. Brooke 1792) (“[T]hat the evidence was not given in his presence … has, in many cases, been held fatal.”); Geoffrey Gilbert, The Law of Evidence 69 (Phila., Joseph Crukshank 5th ed. 1788) (“On an Appeal of Murder … it is necessary to have his Accusers Face to Face.”); 1 Richard Burn & John Burn, The Justice of the Peace and Parish Officer 415 (London, A. Strahan & W. Woodfall for T. Cadell 16th ed. 1788) (“[T]he evidence … must be given in presence of the defendant ….”); see also 3 William Blackstone, Commentaries on the Laws of England 373-74 (Oxford, Clarendon Press 1768) (noting that the judge’s “presence” will inspire witnesses with “respect and awe”); Matthew Hale, The History of the Common Law 286, 290-91 (Charles Runnington ed., London, W. Strahan & M. Woodfall for T. Cadell 4th ed. 1779) (noting the “method and manner” of a “trial by a jury,” such as the “open course of evidence to the jury in the presence of the judge, jury, parties, and council,” includes the “personal appearance” of witnesses). I have modernized outmoded spellings in some texts.
68. Craig, 497 U.S. at 847-50. Justice Scalia argued the term “witnesses against him” means witnesses that appear at trial, so prior statements are only regulated to ensure the core confrontation right is not “subvert[ed].” Id. at 865 (Scalia, J., dissenting). His interpretation of “witnesses against him” remains a subject of dispute. See, e.g., Jeffrey Bellin, “The Incredible Shrinking Confrontation Clause,” 92 B.U. L. Rev. 1865, 1881-86 (2012). For purposes of this article, the more important point is that even academics critical of Justice Scalia agree that as for witnesses at trial, the founders contemplated in-person testimony. See David L. Noll, “Constitutional Evasion and the Confrontation Puzzle,” 56 B.C. L. Rev. 1899, 1931 (2015); Thomas Y. Davies, “Revisiting the Fictional Originalism in Crawford’s ‘Cross-Examination Rule’: A Reply to Mr. Kry,” 72 Brook. L. Rev. 557, 558 (2007).
69. Id. at 64-65.
70. Id. at 277-78.
71. State v. Atkins, 1 Tenn. (1 Overt.) 229, 229 (1807) (per curiam), tuned Tennessee’s confrontation right to what was “agreeabl[e] to Magna Charta,” probably meaning “Magna Charta” as a “generic term for all English rules of supposed constitutional significance,” see Wright & Graham, supra note 37, § 6345, at 466. Atkins was later overruled largely for inaccurately understanding the law at the founding. See Kendrick v. State, 29 Tenn. (10 Hum.) 479, 485 (1850).
72. See, e.g., State ex rel. Timothy v. Howse, 183 S.W. 510, 514 (Tenn. 1916).
73. The admissibility of dying declarations is an easy case; how to treat certain other prior statements is admittedly more complex. See Bellin, supra note 68, at 1888-93.
74. Seals v. State, 23 S.W.3d 272, 277 (Tenn. 2000).
75. Kendrick, 29 Tenn. (10 Hum.) at 488.
76. Penny J. White, “Rescuing the Confrontation Clause,” 54 S.C. L. Rev. 537, 620 (2003). Make no mistake, “[t]here are important reasons why live, in-person testimony is more desirable than remote testimony.” Kelly v. Kelly, 445 S.W.3d 685, 694 (Tenn. 2014).
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