March 8 (Bloomberg) -- The U.S. Supreme Court bolstered criminal defendants' constitutional right to exclude incriminating trial testimony from witnesses who aren't available to be cross- examined.

The court ruled that prosecutors can use earlier testimony from a witness who is unavailable for trial only if the defendant previously had a chance to question the witness. Ruling in an assault case from Washington state, the court threw out a previous rule that let prosecutors use such testimony if a court decides it is reliable.

The U.S. Constitution's Sixth Amendment says that in all criminal prosecutions, the defendant has the right ``to be confronted with the witnesses against him.'' Today's ruling cited the 1603 trial in England in which explorer Sir Walter Raleigh was convicted of treason after not being allowed to question a man whose prior statements implicated Raleigh.

``Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty,'' Justice Antonin Scalia wrote for the court. ``This is not what the Sixth Amendment requires.''

Seven of the nine justices voted to throw out the court's 1980 rule allowing use of an unavailable witness's prior testimony if a court determines it is reliable. The standard was too vague and led to unpredictable results, Scalia wrote.

Tape-Recorded Statement

All nine justices agreed that prosecutors in Washington state shouldn't have been allowed to use a tape-recorded statement by the wife of Michael D. Crawford at his trial on charges of stabbing a man. Crawford claimed self-defense in stabbing a man who he claimed had earlier tried to rape his wife.

Crawford's lawyer, Jeffrey Fisher of Davis Wright Tremaine in Seattle, said in a statement today that courts had been using the 1980 rule to allow ``the very kind of out-of-court statements that the confrontation clause is designed to prohibit.''

``The Supreme Court's decision will fundamentally alter the way that criminal defendants are tried across the nation,'' Fisher says. ``No more will governments be able to convict people of crimes on the basis of accusations that they are unable to cross- examine.''

Crawford's wife, Sylvia, didn't testify at his trial because state law generally bars a spouse from testifying without the other spouse's consent. Prosecutors used her statement to police, in which she said she didn't see anything in the stabbing victim's hand, as evidence that the stabbing wasn't self-defense. Crawford was convicted of assault.

`Politically Charged Cases'

An appeals court threw out Crawford's conviction, saying his wife's statement shouldn't be considered reliable. The Washington Supreme Court reinstated his conviction, concluding her statement was reliable because of similarities with Crawford's statement.

``Admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation,'' Scalia wrote. The Constitution's framers knew that judges ``could not always be trusted to safeguard the rights of the people,'' he said.

Scalia said vague standards can be manipulated, and while that may be a ``small concern'' in ordinary assault cases like Crawford's, ``the framers had an eye toward politically charged cases like Raleigh's -- great state trials where the impartiality of even those at the highest levels of the judiciary might not be so clear.''

Scalia's opinion was joined by Justices John Paul Stevens, Anthony M. Kennedy, David H. Souter, Clarence Thomas, Ruth Bader Ginsburg and Stephen G. Breyer. Chief Justice William H. Rehnquist and Sandra Day O'Connor agreed that the statement by Crawford's wife shouldn't have been allowed in the trial, though they disagreed with the justices' decision to set a new constitutional standard.

The case is Crawford v. Washington, 02-9410.

To contact the reporter on this story: Laurie Asseo in Washington at lasseo1@bloomberg.net.

Last Updated: March 8, 2004 12:45 EST