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The Frame Of Reference And Other Problems, Richard D. Friedman, Jeffrey L. Fisher
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 simple reason …
Come Back To The Boat, Justice Breyer!, Richard D. Friedman
Come Back To The Boat, Justice Breyer!, Richard D. Friedman
Michigan Law Review First Impressions
I want to get Justice Breyer back on the right side of Confrontation Clause issues. In 1999, in Lilly v. Virginia, he wrote a farsighted concurrence, making him one of the first members of the Supreme Court to recognize the inadequacy of the then-prevailing doctrine of the Confrontation Clause. That doctrine, first announced in Ohio v. Roberts, was dependent on hearsay law and made judicial assessments of reliability determinative. In Crawford v. Washington, the Court was presented with an alternative approach, making the key inquiry whether the statement in question was testimonial in nature. During the oral …