No State Confrontation in Idaho

Anthony Sanders · May 27, 2022

In the many State Con Law Case of the Week posts we’ve had on this blog, we’ve discussed all kinds of provisions in a particular state constitution which you can’t find in the U.S. Constitution. Most state constitutions were drafted after the original U.S. Constitution and Bill of Rights (all but Massachusetts and New Hampshire—and even they have been heavily amended). Thus, the drafters of those later documents had the benefit of the U.S. Constitution and many of its amendments to draw from, plus all the past constitutions of other states, and often even of the same state. Not wanting to leave anything good out, these drafters typically inserted just about everything to do with individual liberties from the U.S. Constitution, plus much more. Virtually all state constitutions protect the freedom of speech, due process, and jury trials, for example. When it comes to structural elements of the Constitution things are a bit different, given the different rolls for the federal and state government. For example, foreign policy and war powers are heavily limited or nonexistent at the state level. Even here, though, all states take the U.S. framework of three branches of government before tinkering with it, such as adding an explicit separation of powers clause, splitting the executive up, or directly electing judges. And, again, when it comes to individual rights, protections present in the U.S. Constitution are generally written into a state constitution and then multiplied.

Generally.Running counter to this proclivity, sometimes a state simply doesn’t include a protection from the Bill of Rights, or even something roughly equivalent, in its own constitution. That came up in a case in Idaho this week, where the state supreme court addressed a claim under the Confrontation Clause.

Confronting a lack of confrontation

Among several procedural safeguards on the government’s power to prosecute people for crimes, the Sixth Amendment protects the right of the accused “to be confronted with the witnesses against him”. Here is the amendment in full:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

The U.S. Supreme Court has interpreted this in various ways over the years, but essentially it means that if a statement is used by the prosecution against you as a criminal defendant, you have a right to cross examine the person who made that statement. If a witness is unavailable for trial, their past testimony (such as from a deposition) can only be introduced if the defendant had an opportunity to cross-examine the witness at that earlier time. This right of confrontation is—rightly—a cherished right of criminal procedure that (imperfectly, of course) helps protect again innocent people being put away and has made many a prosecution fall apart on the stand.

So you’d think it would be a no-brainer to include in a state bill of rights, particularly if it was framed before the Confrontation Clause was recognized as applying to the states (which didn’t happened until 1965!). Yet, that doesn’t always happen.

Article I, Section 13 of Idaho’s Constitution is similar to the Sixth Amendment—it’s obviously written with the Sixth in mind—but there are some differences. It says:

In all criminal prosecutions, the party accused shall have the right to a speedy and public trial; to have the process of the court to compel the attendance of witnesses in his behalf, and to appear and defend in person and with counsel.

No person shall be twice put in jeopardy for the same offense; nor be compelled in any criminal case to be a witness against himself; nor be deprived of life, liberty or property without due process of law.

The second paragraph is different, but it’s really just protections from the Fifth Amendment. There’s also no right to a jury trial, but that’s addressed elsewhere in the Idaho Declaration of Rights. You don’t see “state and district” language (the Vicinage Clause), but that clause doesn’t translate well to the state level anyway. Further, the rights to be informed and for assistance of counsel seem to be translated into the rights “to appear and defend in person and with counsel.” Whether those mean the same thing, or have been interpreted to mean the same thing, is a different question I don’t get into here.

That leaves the last difference, the absence of any confrontation language. Why is this? Well, we’re fortunate enough to have the words of the actual drafters of the constitution from the 1889 constitutional convention.

Leaving it to the legislature

And it turns out that the clause isn’t in there for kind of idiosyncratic reasons. You can read the discussion for yourself on page 282 of this transcript. The committee that drew up a draft Declaration of Rights for the convention had inserted rather detailed language which instead of providing a right of confrontation gave the legislature the power to allow for depositions of witnesses, the record of which could be used at trial. This included a right of the accused and counsel to be present in those depositions. The thinking of the delegates on the committee seemed to be that in other states pre-trial depositions by the state simply weren’t allowed even if a defendant can cross-examine, and this should be remedied. Other delegates pushed-back against this level of detail in a constitution, though, and said the legislature has this power anyway if we just leave confrontation clause language out. That argument won out, and the deposition-procedure language was removed and a confrontation clause was not put in. (I’m not sure if the delegates were actually correct about deposition practice in other states in 1889, but that’s what they said.)

However, it turned out that the legislature didn’t take the invitation. It enacted rules for defendants using depositions, but not for the prosecution. As the Idaho Supreme Court said just ten years later in State v. Potter:

It is true that the framers of our constitution saw fit to omit from that instrument the usual provision which obtains in not only the federal constitution, but in that of most of the states, providing that in all criminal prosecutions the defendants shall be confronted with the witnesses against him. Doubtless this omission was made advisedly, and the effect was to leave the matter with the legislature. The legislature has acted upon the question, and has prescribed how and to what extent depositions taken on the preliminary examination of a defendant upon a criminal charge may be used, and we do not think it is the province of the court to extend the rule.

I don’t know if the legislature ever changed that, but in any case the lack of a confrontation clause became less of an issue when the Sixth Amendment’s version was recognized as applying in any case.

When you assume you make an . . .

Which brings us to this week’s State Con Law Case of the Week. In State v. Clapp, which the Idaho Supreme Court handed down on May 20, 2022, a DUI defendant challenged the testimony of the nurse who took a blood draw from him which indicated he was intoxicated. The nurse testified by telephone at trial. The court found this unconstitutional under the Sixth Amendment as it did not allow for the defendant (or the judge or defense counsel) to see the nurse’s face during testimony. But before it did any analysis it noted, as it has in years past, that because of the lack of a parallel clause in the state constitution it was only a Sixth Amendment question. The court did also cite to Section 13, perhaps because it contains a due process clause. It’s conceivable that a defendant could argue that the state due process clause includes a confrontation right, but it seems that argument hasn’t been made (or at least accepted) at the state supreme court.

Now, in this case it didn’t make a difference if there was a state confrontation clause or not. But it’s easy to conceive of a case where the Sixth Amendment, as the U.S. Supreme Court has interpreted it, didn’t bar testimony but the defendant may have an argument for why a state confrontation clause would. This could especially have been true before 2004 when the Court tightened the standards under the clause in Crawford v. Washington. In Idaho, unlike most other states, though, that move wouldn’t be available.

The lesson here is although you should read your state constitution carefully to see if you can make an additional claim to what the U.S. Constitution might provide, you should also check if you can’t. We can’t assume a state constitution provides the same protection as the national version does. The framers of constitutions are all different. Don’t guess that they simply did what everyone else did; for better or for worse.

Anthony Sanders is the Director of the Center for Judicial Engagement at the Institute for Justice.