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University of Michigan Law School

Michigan Law Review First Impressions

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The Frame Of Reference And Other Problems, Richard D. Friedman, Jeffrey L. Fisher Nov 2014

The Frame Of Reference And Other Problems, Richard D. Friedman, Jeffrey L. Fisher

Michigan Law Review First Impressions

George argues that, centuries ago, jurists did not distinguish between testimonial and nontestimonial hearsay, and so the distinction cannot be a historically well-grounded basis for modern confrontation doctrine. The argument proceeds from an inaccurate frame of reference. When the confrontation right developed, principally in the sixteenth and seventeenth centuries, and English defendants—Raleigh among them—demanded that adverse witnesses be brought face to face with them, they were making a procedural assertion as to how witnesses must give their testimony. (Giving testimony is what witnesses in litigation do.) Rarely did they phrase this claim in terms of hearsay, for the ...


Crawford V. Washington: The Next Ten Years, Jeffrey L. Fisher Jan 2014

Crawford V. Washington: The Next Ten Years, Jeffrey L. Fisher

Michigan Law Review First Impressions

Imagine a world . . . in which the Supreme Court got it right the first time. That is, imagine that when the Supreme Court first incorporated the Confrontation Clause against the states, the Court did so by way of the testimonial approach. It’s not that hard to envision. In Douglas v. Alabama—issued in 1965, on the same day the Court ruled that the Confrontation Clause applies to the states—the Court held that a nontestifying witness’s custodial confession could not be introduced against the defendant because, while “not technically testimony,” the confession was “the equivalent in the jury’s ...


Refining Crawford: The Confrontation Claus After Davis V. Washington And Hammon V. Indiana, Andrew C. Fine Jan 2006

Refining Crawford: The Confrontation Claus After Davis V. Washington And Hammon V. Indiana, Andrew C. Fine

Michigan Law Review First Impressions

Clarification of the Supreme Court’s newly minted interpretation of the Confrontation Clause was desperately needed, and Davis v. Washington and Hammon v. Indiana promised to provide it. Two terms earlier, in Crawford v. Washington, the Supreme Court had worked a revolutionary transformation of Confrontation Clause analysis by overruling Ohio v. Roberts and severing the link between hearsay jurisprudence and the Clause. Crawford was hailed by the criminal defense bar, since it seemed to presage a sharp reduction in the frequency of so-called “victimless” trials by holding that “testimonial” hearsay, no matter how reliable, was constitutionally inadmissible in the absence ...


Davis And Hammon: A Step Forward, Or A Step Back?, Tom Lininger Jan 2006

Davis And Hammon: A Step Forward, Or A Step Back?, Tom Lininger

Michigan Law Review First Impressions

Prosecutors, defense attorneys, and lower court judges hoped that the Supreme Court’s ruling in the consolidated cases of Davis v. Washington and Hammon v. Indiana (hereafter simply Davis) would provide a primer on testimonial hearsay. In retrospect, these hopes were somewhat unrealistic. The Davis ruling could not possibly clear up all the confusion that followed Crawford v. Washington, the landmark 2004 case in which the Court strengthened the right of the accused to confront declarants of testimonial hearsay. In Davis, the Court focused on the facts under review and developed a taxonomy that will be useful in similar cases ...


Still "Left In The Dark": The Confrontation Clause And Child Abuse Cases After Davis V. Washington, Anthony J. Franze, Jacob E. Smiles Jan 2006

Still "Left In The Dark": The Confrontation Clause And Child Abuse Cases After Davis V. Washington, Anthony J. Franze, Jacob E. Smiles

Michigan Law Review First Impressions

In his concurring opinion in Crawford v. Washington, Chief Justice Rehnquist criticized the majority for holding that the Confrontation Clause applies to “testimonial” statements but leaving for “another day” any effort to define sufficiently what “testimonial” means. Prosecutors and defendants, he said, “should not be left in the dark in this manner.” Over the next two years, both sides grappled with the meaning of testimonial, each gleaning import from sections of Crawford that seemingly proved their test was the right one. When the Court granted certiorari in Davis v. Washington and Hammon v. Indiana (hereinafter Davis), hopes were high that ...


Davis/Hammon, Domestic Violence, And The Supreme Court: The Case For Cautious Optimism, Joan S. Meier Jan 2006

Davis/Hammon, Domestic Violence, And The Supreme Court: The Case For Cautious Optimism, Joan S. Meier

Michigan Law Review First Impressions

The Supreme Court’s consolidated decision in Davis v. Washington and Hammon v. Indiana offers something for everyone: by “splitting the difference” between the two cases—affirming one and reversing the other—the opinion provides much grist for advocates’ mills on both sides of this issue. While advocates for defendants’ rights are celebrating the opinion’s continued revitalization of the right to confrontation, which began in Crawford v. Washington, advocates for victims have cause for celebration as well: the decision is notable for its reflection of the Court’s growing—albeit incomplete— awareness and understanding of the dynamics of domestic ...


Davis V. Washington And Hammon V. Indiana: Beating Expectations, Robert P. Mosteller Jan 2006

Davis V. Washington And Hammon V. Indiana: Beating Expectations, Robert P. Mosteller

Michigan Law Review First Impressions

I begin with a question of effectiveness: does the new Confrontation Clause doctrine effectively protect defendants with respect to the most im-portant types of problematic out-of-court statements? Although they leave much room for the introduction of hearsay in the immediate aftermath of crime generally, Davis v. Washington and Hammon v. Indiana (together hereinafter Davis) are better opinions from that broad perspective than I had feared. The new doctrine now covers and provides substantial procedural protection for a very important class of problematic hearsay—statements made to government agents investigating past crime.


Circling Around The Confrontation Clause: Redefined Reach But Not A Robust Right, Lisa Kern Griffin Jan 2006

Circling Around The Confrontation Clause: Redefined Reach But Not A Robust Right, Lisa Kern Griffin

Michigan Law Review First Impressions

The Supreme Court’s consolidated ruling in United States v. Davis and United States v. Hammon is a classic of the genre of consensus opinions to which the Roberts Court aspired in its first, transitional term. The opinion, authored by Justice Scalia, contains practical accommodations unusual in a decision by the Court’s fiercest proponent of first principles. The restraint that characterized the term is, of course, more about considerations of logistics (including the desire to avoid re-arguments after the mid-term replacement of Justice O’Connor) than about the alignment of logic. Because it reflects temporary institutional constraints rather than ...