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Common Law Confrontations

Published online by Cambridge University Press:  09 August 2019


This symposium essay contends that the image of the common law drawn by the Supreme Court in the Confrontation Clause context is both distorted and incomplete. In particular, the Court and scholars defending originalist positions rely almost entirely on English sources in their reconstruction of the common law basis for the Confrontation Clause, thereby neglecting the diversity of American common laws from the time of the Founding, a diversity that has already been unearthed by a number of legal historians. By drawing on hitherto untapped sources to furnish a bottom-up reconstruction of how testimony was treated in local criminal courts within mid- to late-eighteenth-century New Jersey, this essay demonstrates that, in at least some jurisdictions, the originalist vision of common law did not apply. The common law cannot, therefore, furnish a univocal answer to questions about the original meaning of the Confrontation Clause.

Invited Article
Copyright © the American Society for Legal History, Inc. 2019 

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She is very grateful for the assistance of archivists and librarians Vivian Thiele, Gregory Gill, and Sonia Moss as well as the invaluable comments and advice of colleagues Amalia Kessler, David Sklansky, Rick Banks, Jeff Fisher, and Hendrik Hartog.


1. U.S. Const., amend. VI, cl. 3; and State v. Crawford, 147 Wash.2d 424 (2002), reversed by Crawford v. Washington, 541 U.S. 36 (2004). See also Friedman, Richard, “The Story of Crawford,” in Evidence Stories, ed. Lempert, Richard (New York: Foundation Press, 2006), 335–58Google Scholar.

2. Crawford v. Washington, 541 U.S. 36, 50–54 (2004).

3. See, generally, Sklansky, David A., “The Fourth Amendment and Common Law,” Columbia Law Review 100 (2000): 1739CrossRefGoogle Scholar. Justice Neil Gorsuch, a self-proclaimed originalist, more recently appealed to the common law in vociferously rejecting existing Fourth Amendment doctrine in his dissent in Carpenter v. United States, 138 S.Ct. 2206, 2261–2272 (2018).

4. A number of cases have extended the Confrontation Clause to new areas, including the introduction of written scientific reports absent the preparer's testimony at trial (Melendez-Diaz v. Massachusetts, 557 U.S. 305 [2009]) and statements that police collected from domestic abuse victims once the emergency had passed (Davis v. Washington, 547 U.S. 813 [2006]).

5. See, for example, Ohio v. Clark, 135 S. Ct. 2173 (2015); Williams v. Illinois, 132 S. Ct. 2221 (2012); Michigan v. Bryant, 131 S. Ct. 1143 (2011); and Bullcoming v. New Mexico, 564 U.S. 647 (2011).

6. But compare Ohio v. Clark, 135 S. Ct. at 2182, in which Justice Alito added some reference to original meaning to his other arguments in favor of admitting the abused child's statement to his teacher.

7. A notable exception is Thomas Davies’s 2005 piece What Did the Framers Know and When Did They Know It? Fictional Originalism in Crawford v. Washington,” Brooklyn Law Review 71 (2005): 105Google Scholar, which argues that Justice Scalia's opinion in Crawford misrepresented the nature of American common law at the time of the founding.

8. See, for example, William Nelson, The Common Law in Colonial America, vols. 1–4 (2008–18); Hulsebosch, Daniel, Constituting Empire (Durham: University of North Carolina Press, 2005)Google Scholar; Brewer, Holly, By Birth or Consent (Durham: University of North Carolina Press, 2005)Google Scholar; and Bilder, Mary, The Transatlantic Constitution (Cambridge, MA: Harvard University Press, 2004)Google Scholar.

9. Crawford, 541 U.S. at 43.

10. David Sklansky has written extensively about the anti-inquisitorial turn of the Supreme Court's jurisprudence and argued convincingly, contra originalists, that the criminal procedure provisions of the United States Constitution were not principally intended to avoid the evils of civil law systems. See, for exaple, Sklansky, , “Anti-Inquisitorialism,” Harvard Law Review 122 (2009): 1634Google Scholar. In her recent book The Rise of American Exceptionalism (New Haven, CT: Yale University Press, 2017)Google Scholar, Amalia Kessler has also demonstrated that civil procedure only moved away from civil law models in the nineteenth century, well after ratification of the Bill of Rights.

11. 2&3 Phil. and Mary, c. 10 (1555). This statute revised and supplemented one from the prior year, 1&2 Phil. and Mary, c. 13 (1554).

12. Crawford, 541 U.S. 46, 49.

13. Leonard Sosnov discusses the significance of the use of “face to face” in the Pennsylvania Constitution of 1790 in Criminal Procedure Rights Under the Pennsylvania Constitution,” Widener Journal of Public Law 3 (1993): 217341Google Scholar.

14. Letters of Delegates to Congress, Vol. 13, July 6, 1779.

15. Langbein, John, The Origins of Adversary Criminal Trial (Oxford: Oxford University Press, 2013)Google Scholar, 234, n. 241.

16. Massaro, Toni, “The Dignity Value of Face-to-Face Confrontations,” Florida Law Review 40 (1988)Google Scholar: 863, 903; and Clark, Sherman, “An Accuser-Obligation Approach to the Confrontation Clause,” Nebraska Law Review 81 (2003): 1258Google Scholar.

17. Francis Heller's book, The Sixth Amendment, is widely cited for this proposition, yet invokes no historical basis for the assertion. Heller, Francis, The Sixth Amendment to the Constitution of the United States (Lawrence: University of Kansas Press, 1951), 104–5Google Scholar. For a critique of the notion that Raleigh's trial influenced the Founders, see Graham, Kenneth, “Confrontation Stories: Raleigh on the Mayflower,” Ohio State Journal of Criminal Law 3 (2005): 201Google Scholar.

18. Virginia Declaration of Rights, sect. 8 (1776); see also Heller, note 17, at 13–34.

19. Gregory Maggs catalogues the relevant law dictionaries in A Concise Guide to Using Dictionaries from the Founding Era to Determine the Original Meaning of the Constitution,” The George Washington Law Review 82 (2014): 358, 382Google Scholar. For the reference to answered confrontation, see Timothy Cunningham, A New and Complete Law Dictionary, vol. 1, 3rd ed. (1783) (“Evidence. … A Bill in Chancery allowed in dom. proc. as evidence to confront a woman who pretended marriage. Parl. Coll. 88”).

20. Johnson, Samuel, A Dictionary of the English Language (London: W. Strahan, 1755)Google Scholar.

21. Style et Maniere de Procéder en Matiere Criminelle au Pays de Liege … Par un Citoyen Praticien (Liège: A. Herve, 1779), 62–63. For a full description of the confrontation in ancien régime criminal practice, see Andrews, Richard Mowray, Law, Magistracy, and Crime in Old Regime Paris, 1735–1789, vol. 1 (Cambridge: Cambridge University Press, 1994), 432–34Google Scholar. Others have noted the ancient Roman and medieval European precedents for confrontation in the American context. See, for example, Herrmann, Frank R. and Speer, Brownlow M., “Facing the Accuser: Ancient and Medieval Precursors of the Confrontation Clause,” Virginia Journal of International Law 34 (1994): 481Google Scholar. I have not, however, seen any reference to the French practice contemporaneous to the Founding Era.

22. For a full airing of the dispute about the timing of the English cases and whether they would have been known by 1791, see Davies, note 5, and Kry, Robert, “Confrontation Under the Marian Statutes: A Reply to Professor Davies,” Brooklyn Law Review 72 (2007): 493Google Scholar; as well as Davies, Thomas, “Revisiting the Fictional Originalism in Crawford's Cross-Examination Rule: A Reply to Mr. Kry,” Brooklyn Law Review 72 (2007): 557Google Scholar.

23. Crawford, 541 U.S. at 54.

24. Ohio v. Clark, 135 S.Ct. 2173, 2180 (2015).

25. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 322 (2009).

26. The materials treated in this article were compiled out of a review of several manuscript sources pertaining to pretrial and trial proceedings in New Jersey. The James Alexander and John Tabor Kempe Collection Papers at the New York Historical Society contain hundreds of pages of depositions sworn before justices in various counties of New York and New Jersey from the 1720s through the 1770s, with the bulk stemming from the 1750s, 1760s, and 1770s. The Princeton University library also contains a detailed record of the period during which Samuel Nevill, a justice of the New Jersey Supreme Court, presided over the sessions of Oyer and Terminer, from 1749 through 1762, which has been transcribed in a series of issues of the New Jersey Genealogical Magazine (New Jersey Genealogical Magazine, Vol. 68, no. 3 [Sept. 1993], 98) (hereafter Record). The New Jersey Historical Society has only this year, through the efforts of Gregory Gill, microfilmed nine reels of Minute Books from the counties in New Jersey, spanning 1730 through the early nineteenth century (hereafter Minute Books); some of these materials overlap with the Record. When they treat the same dates, they tend to confirm each other, but the occasional discrepancies are informative. Furthermore, under the able archiving of Vivian Thiele, the New Jersey Supreme Court maintains searchable manuscripts of case material from the colonial period.

In pursuing this research, I examined all New Jersey Supreme Court records of felony cases from 1750 onwards, including the materials associated with approximately forty trials. For many of these, the only remaining documents are indictments, usually marked on the outside with the grand jury's determination (“billa vera” or “ignoramus”) as well as, sometimes, a list of evidences and the ultimate resolution of the case (“guilty,” “not guilty”). On occasion, recognizances for the appearance of witnesses are included. Few files, however, contain the depositions produced by pretrial examination; the New Jersey Supreme Court records are, therefore, most useful for the purposes of this article in conjunction with the other manuscript materials. Where New Jersey Supreme Court materials are available as well as other manuscript sources, I have correlated the case files. In “Colonial Criminal Law and Procedure: The Royal Colony of New Jersey, 1749–1757,” George Thomas III surveyed the first section of the Reports to give an overview, but did not materially touch on confrontation. New York University Journal of Law & Liberty 1 (2005): 671.

27. New Jersey Constitution of 1776. (accessed June 21, 2019).

28. Kry, “Confrontation Under the Marian Statutes,” 493. John Langbein's study, The Origins of Adversary Trial, has comprehensively mined the records of the Old Bailey, the felony trial court for London and Middlesex County, for an understanding of the evolution of English adversary proceedings and criminal procedure more generally. His account furnishes some cautions, however, about excessive extrapolation from the Old Bailey Session Papers; in particular, “[t]he Sessions Papers necessarily impart an urban slant to the historical inquiry that is based upon them.” Langbein, John, The Origins of Adversary Trial (Oxford: Oxford University Press, 2003), 181Google Scholar. Concentrating on the Old Bailey hence not only gives English practice priority over American practice, but additionally says more about urban than rural justice.

29. Kry, “Confrontation Under the Marian Statutes,” 512.

30. Kry notes a few such examples from the Old Bailey, but in those cases the defendants were mentioned as present.

31. Goebel, and Naughton, , Law Enforcement in Colonial New York (New York: The Commonwealth Fund, 1944), 200202Google Scholar, 633–35.

32. The second volume of William Nelson's The Common Law in Colonial America considers the relationship between New Jersey and New York as well as New Jersey's reception of the common law. As he observes, East and West Jersey differed during the seventeenth century, with East Jersey under the sway of a jurisprudence resembling that of New York, and West Jersey more affiliated with the Quaker forms of justice coming from Pennsylvania. By the early eighteenth century, the colony was more fully united, however, under a new Supreme Court, which assisted in promulgating English common law within New Jersey. Nelson, William, The Common Law in Colonial America: The Middle Colonies and the Carolinas, 1660–1730, vol. 2 (Oxford: Oxford University Press, 2013), 15Google Scholar, 124–43.

33. New York Historical Society, Alexander Papers, Box 40, folder 7.

34. King v. Carlisle and Day (1773). Alexander Papers, Box 42, Folder 4 (Court Papers—Middlesex County—Criminal Court). The first deposition in this case was recorded on November 13, 1772, and the second and third were recorded on January 19, 1773.

35. There are three additional especially clear instances of this practice: King v. Thomas James—Examinations of Thomas James and Daniel Morphet taken by John Chamberlain on Dec. 24, 1772; deposition of Jonathan Bullen, taken by Joseph Shelton on Dec. 27, 1772; and deposition of Mary Sullivan on December 29, 1772, taken by Joseph Shelton. Alexander Papers, Box 42, Folder 4 (Court Papers—Middlesex County—Criminal Cases); King v. David Reynolds—Examination of Jemimah Sutton on July 13, 1772 (the day she claimed to have been raped by David Reynolds); Daniel Hazen [also Haisen] examination on July 24, 1772; and James Sutton, Jr. deposition on August 22, 1772. Alexander Papers, Box 44, Folder 9 (Court Papers—Sussex County—Criminal Cases). King v. Joseph Welsh (1725): Deposition of James Harris, March 22, 1725; and Deposition of Micajah Howe, March 24, 1725. Hunterdon County.

36. Alexander Papers, Box 42, Folder 4 (Court Cases—Middlesex County—Criminal Cases).

37. Goebel and Naughton, Law Enforcement in Colonial New York, 636.

38. Genealogical Magazine of New Jersey 69 (1993): 67.

39. See, for example, ibid., 61–63.

40. See, for example, Genealogical Magazine of New Jersey 70 (1995): 40.

41. See, for example, Genealogical Magazine of New Jersey 72 (1997): 128.

42. Genealogical Magazine of New Jersey 69 (1993): 63; Genealogical Magazine of New Jersey 70 (1995): 37; and Genealogical Magazine of New Jersey 71 (1996): 89.

43. Genealogical Magazine of New Jersey 70 (1995): 40; and Genealogical Magazine of New Jersey 71 (1996): 93. Keasbey, Edward furnishes a brief biographical sketch in The Courts and Lawyers of New Jersey, 1661–1912, vol. 1 (New York: Lewis Historical Publishing Company, 1912), 305–7Google Scholar.

44. Shaw, William H., History of Essex and Hudson Counties, NJ, vol. 1 (Philadelphia: Everts and Peck, 1884), 239Google Scholar. I am grateful to Vivian Thiele for pointing me to the land dispute between 1740 and 1743 that lists Farmar as a master in Chancery. New Jersey was one of the colonies that maintained a separate Chancery, presided over by the governor as chancellor. Stanley Katz's article “The Politics of Law in Colonial America: Controversies over Chancery Courts and Equity Law in the Eighteenth Cenutry,” furnishes a sense of the political controversies plaguing that institution, as well as other colonial Chancery courts. Katz, Stanley, “The Politics of Law in Colonial America: Controversies over Chancery Courts and Equity Law in the Eighteenth Cenutry,” in American Law and the Constitutional Order, ed. Katz, Stanley, Friedman, Lawrence and Scheiber, Harry (Cambridge, MA: Harvard University Press, 1988), 46Google Scholar.

45. Supreme Court Case File 21541; also Supreme Court Case File 21088.

46. Goebbel and Naughton, Law Enforcement in Colonial New York, 358.

47. Genealogical Magazine of New Jersey 88 (2013): 87, 90. The Minutes contains an identical passage. “Minutes of the Middlesex County Court of Oyer and Terminer, October 17–18, 1760,” Reel 6.

48. Genealogical Magazine of New Jersey 88 (2013): 87, 89.

49. King v. Tuttle, *21412.

50. Genealogical Magazine of New Jersey 68 (1993): 97, 103–4.

51. New Jersey Historical Society, Reel 5.

52. State v. McDonald (1786, Somerset County), New Jersey Supreme Court File 37067.

53. See, for example, “Elisabeth Willson. On recognizance to give evidence. Defendant made default. Appeared next day,” Genealogical Magazine of New Jersey 61 (1993): 68.

54. Genealogical Magazine of New Jersey 75 (2000): 75, 76; New Jersey Historical Society Reel 5, “Minutes of the Hunterdon County Court of Oyer and Terminer, May 7, 1754.”

55. New Jersey Historical Society Reel 5, “Minutes of the Hunterdon County Court of Oyer and Terminer, May 7, 1754”; there is a discrepancy in the Record, which only includes Cooper rather than both Cooper and Fischer, and also omits the specifications “affirmed” and “sworn.”

56. Genealogical Magazine of New Jersey 76 (2001): 130, 136–37. The Minute Book confirms the Record on this point. “Minutes of the Monmouth County Court of Oyer and Terminer, October 28–31, 1755,” Reel 6.

57. King v. Roney, 21223, Genealogical Magazine of New Jersey 76 (2003): 106, 108–110 (confirmed by the Minute Book).

58. Genealogical Magazine of New Jersey 80 (2005): 115, 118–20; and King v. Hussey, 20739 (Cumberland County, 1758); same witnesses in the Minute Books.

59. Genealogical Magazine of New Jersey 79 (2004): 91, 94–95 (Salem County, 1757) (those omitted from the list of recognizances include William Somerel, Samuel Lynch, Martin Skeer, John Proctor, and Joseph Hawks). The Minute Books contain the indictment from the 1756 Quarter Session, the only such inclusion I have seen. Importantly, the list of evidence from the indictment includes both Somerel and Lynch, as well as two others who did appear at trial. “Minutes of the Salem County Court of Oyer and Terminer, April 19–23, 1757,” Reel 9. Hence the evidence that they had offered to the grand jury was probably introduced at trial as well, even though they were not recorded as being present. Adding complexity is the fact that Samuel Lynch is designated “Esq.” in the Minute Book, and other records indicate that he was a justice of the peace in Salem. Hence he may have been one of the unnamed group composed of “Sheriff, Justices, and Coroners called” at the commencement of the session. In the case of Samuel Service, who had been indicted during the Quarter Sessions in 1752 in Hunterdon County, none of the witnesses designated as evidence in the case are named earlier in either the Record or the Minute Book; this suggests that their testimony from the Quarter Sessions was accepted without their live appearance. See “Minutes of the Court of Oyer and Terminer of Hunterdon County,” May 19–23, 1752; Genealogical Magazine of New Jersey 71 (1996): 85, 88.