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Full-Text Articles in Law
Avoiding A Confrontation? How Courts Have Erred In Finding That Nontestimonial Hearsay Is Beyond The Scope Of The Bruton Doctrine, Colin Miller
Faculty Publications
No abstract provided.
Confrontation, Experts, And Rule 703, Paul C. Giannelli
Confrontation, Experts, And Rule 703, Paul C. Giannelli
Faculty Publications
The United States Supreme Court has decided several cases concerning expert testimony and the Confrontation Clause. This essay argues that confrontation issues are complicated by Federal Evidence Rules 73 and 75, which changed the common law rules. Altering the common law made sense in civil cases because civil rules of procedure provide extensive discovery, which ensures basic fairness. In contrast, discovery in criminal cases is quite limited, which undercuts an accused’s ability to meaningfully confront prosecution experts at trial.
Confronting Coventurers: Coconspirator Hearsay, Sir Walter Raleigh, And The Sixth Amendment Confrontation Clause, Ben L. Trachtenberg
Confronting Coventurers: Coconspirator Hearsay, Sir Walter Raleigh, And The Sixth Amendment Confrontation Clause, Ben L. Trachtenberg
Faculty Publications
Using the example of a recent major terrorism prosecution, this article addresses “coventurer hearsay” in the context of the ongoing Confrontation Clause debate concerning the United States Supreme Court’s decision in Crawford v. Washington. Courts have recently begun admitting hearsay evidence pursuant to a revisionist interpretation of the coconspirator statement exception to the hearsay rule. Under the new “lawful joint venture” theory, a hearsay statement may be admitted as a coconspirator statement if made in furtherance of a “joint undertaking” - defined as pretty much any cooperative activity - even if the “conspiracy” is not illegal. Because this new interpretation …
Coconspirators, “Coventurers,” And The Exception Swallowing The Hearsay Rule, Ben L. Trachtenberg
Coconspirators, “Coventurers,” And The Exception Swallowing The Hearsay Rule, Ben L. Trachtenberg
Faculty Publications
In recent years, prosecutors - sometimes with the blessing of courts - have argued that when proving the existence of a “conspiracy” to justify admission of evidence under the Coconspirator Exception to the Hearsay Rule, they need show only that the declarant and the defendant were “coventurers” with a common purpose, not coconspirators with an illegal purpose. Indeed, government briefs and court decisions specifically disclaim the need to show any wrongful goal whatsoever. This Article contends that such a reading of the Exception is mistaken and undesirable. Conducted for this article, a survey of thousands of court decisions, including the …
We Have A "Purpose" Requirement If We Can Keep It, James F. Flanagan
We Have A "Purpose" Requirement If We Can Keep It, James F. Flanagan
Faculty Publications
The Supreme Court in Giles v. California held that a defendant forfeits the right to confront a witness only when he purposefully keeps the witness away. Many see the "purpose" requirement as an unjustified bar to the use of victim hearsay, particularly in domestic violence prosecutions where victims often refuse to appear. The author defends Giles as a correct reading of history, and independently justified by longstanding precedent that constitutional trial rights can only be lost by intentional manipulation of the judicial process. Moreover, the purpose requirement does not prevent prosecutions or convictions because the definition of testimonial hearsay is …
The Confrontation Clause And Co-Defendant Confessions: The Drift From Bruton To Parker V. Randolph, Paul Marcus
The Confrontation Clause And Co-Defendant Confessions: The Drift From Bruton To Parker V. Randolph, Paul Marcus
Faculty Publications
No abstract provided.