Law Commons^™

The Confrontation Right, Richard D. Friedman

Book Chapters

This chapter examines the right of criminal defendants to be confronted with the witnesses against them. It first provides an overview of the nature, purposes, and costs of the confrontation right before discussing the history of the confrontation right. It then considers a range of issues that may arise in any jurisdiction (or in some cases, any common law jurisdiction) with regard to the confrontation right, using as a touchstone the current status of the right in the United States. In particular, it describes situations in which the question of whether a statement is testimonial typically arises, such as fresh …

"Sweet Childish Days": Using Developmental Psychology Research In Evaluating The Admissibility Of Out-Of-Court Statements By Young Children, Lynn Mclain

Maine Law Review

Young children are frequently precluded from testifying at trial on the grounds of incompetency because they cannot answer questions about abstract concepts regarding “truth” and “lies.” In this situation, should the child’s earlier, out-of-court statements disclosing the abuse and identifying the abuser also be inadmissible? The stakes are huge. If young children cannot testify, and their out-of-court statements are precluded, they simply become safe prey, unprotected by the judicial system. The pivotal question becomes, are there procedures that can ensure fairness both to children and to their alleged abusers? This article argues that a child’s testimonial incapacity at trial ought …

Rescued From The Grave And Then Covered With Mud: Justice Scalia And The Unfinished Restoration Of The Confrontation Right, Richard D. Friedman

Articles

Some years before his death, when asked which was his favorite among his opinions, Antonin Scalia named Crawford v. Washington. It was a good choice. Justice Scalia's opinion in Crawford reclaimed the Confrontation Clause of the Sixth Amendment to the Constitution and restored it to its rightful place as one of the central protections of our criminal justice system. He must have found it particularly satisfying that the opinion achieved this result by focusing on the historical meaning of the text, and that it gained the concurrence of all but two members of the Court, from all ideological positions.

Face-To-Face With Facial Recognition Evidence: Admissibility Under The Post-Crawford Confrontation Clause, Joseph Clarke Celentino

Michigan Law Review

In Crawford v. Washington, the Supreme Court announced a major change in Confrontation Clause doctrine, abandoning a decades-old framework that focused on the common law principles of hearsay analysis: necessity and reliability. The new doctrine, grounded in an originalist interpretation of the Sixth Amendment, requires courts to determine whether a particular statement is testimonial. But the Court has struggled to present a coherent definition of the term testimonial. In its subsequent decisions, the Court illustrated that its new Confrontation Clause doctrine could be used to bar forensic evidence, including laboratory test results, if the government failed to produce the …

The History Of Children's Hearsay: From Old Bailey To Post-Davis, Thomas D. Lyon, Raymond Lamagna

Thomas D. Lyon

The papers in this symposium were originally prepared for the Section on Evidence of the 2007 Annual Meeting of the Association of American Law Schools.

Domestic Violence And The Confrontation Clause: The Case For A Prompt Post-Arrest Confrontation Hearing, Robert M. Hardaway

Sturm College of Law: Faculty Scholarship

Part I and Part II of this article discuss the consequences of Crawford v. Washington for domestic violence victims and detail the problem of domestic violence in America, including the current prosecution strategies and challenges in domestic violence cases. Part III reviews the evolution of confrontation law jurisprudence. Part IV sets forth a proposed Crawford-compliant procedure that also protects domestic violence victims. Part V addresses anticipated objections to the prompt-post arrest confrontation hearing.

Forfeiture Of Confrontation Rights And The Complicated Dynamics Of Domestic Violence: Some Thoughts Inspired By Myrna Raeder, Aviva A. Orenstein

Articles by Maurer Faculty

In this essay and memorial to my friend and colleague, Myrna Raeder, I examine forfeiting the right of confrontation in the context of domestic violence cases. In 2004, Crawford v. Washington the United States Supreme Court reinterpreted the Sixth Amendment, requiring that for “testimonial statements” to be offered against the accused, the speaker must appear in court, or, if unavailable, must have been subject to cross-examination previously. The practical effect of Crawford was to exclude many out-of-court statements that had previously been admissible. Nowhere was the effect of Crawford more striking than in domestic violence cases, where victims often make …

Crawford V. Washington: Reclaiming The Original Meaning Of The Confrontation Clause, Danielle Dupre

Touro Law Review

No abstract provided.

A Year To Remember: The Supreme Court's Fourth, Fifth, And Sixth Amendment Jurisprudence For The 2003 Term, William E. Hellerstein

Touro Law Review

No abstract provided.

Crime Labs And Prison Guards: A Comment On Melendez-Diaz And Its Potential Impact On Capital Sentencing Proceedings, John Blume, Emily Paavola

John H. Blume

The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right "to be confronted with the witnesses against him." Four years ago, in Crawford v. Washington, the United States Supreme Court held that this right bars the admission of testimonial hearsay statements against criminal defendants, regardless of whether or not the statements fall within an evidentiary hearsay exception. It was a decision that other courts later described as a "bombshell," a "renaissance," and "a newly shaped lens" through which to view the Confrontation Clause. The case generated an extensive amount of discussion among legal commentators. Since its …

Jack Weinstein And The Missing Pieces Of The Hearsay Puzzle, Richard D. Friedman

Articles

For the first three quarters of the twentieth century, the Wigmore treatise was the dominant force in organizing, setting out, and explaining the American law of evidence. Since then, the first two of those roles have been taken over in large part by the Federal Rules of Evidence (Rules). And the third has been performed most notably by the Weinstein treatise. Judge Jack Weinstein was present at the creation of the Rules and before. Though he first made his name in Civil Procedure, while still a young man he joined two of the stalwarts of evidence law, Edmund Morgan and …

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

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 …

Case For A Constitutional Definition Of Hearsay: Requiring Confrontation Of Testimonial, Nonassertive Conduct And Statements Admitted To Explain An Unchallenged Investigation, The , James L. Kainen

James L. Kainen

Crawford v. Washington’s historical approach to the confrontation clause establishes that testimonial hearsay inadmissible without confrontation at the founding is similarly inadmissible today, despite whether it fits a subsequently developed hearsay exception. Consequently, the requirement of confrontation depends upon whether an out-of-court statement is hearsay, testimonial, and, if so, whether it was nonetheless admissible without confrontation at the founding. A substantial literature has developed about whether hearsay statements are testimonial or were, like dying declarations, otherwise admissible at the founding. In contrast, this article focuses on the first question – whether statements are hearsay – which scholars have thus far …

Family Court, Queens County, In Re German F. And Hector R., Angelique Hermanowski

Touro Law Review

No abstract provided.

Supreme Court, Queens County, People V. Tam, Elaine Yang

Touro Law Review

No abstract provided.

Court Of Appeals Of New York - People V. Nieves-Andino, Jason Gines

Touro Law Review

No abstract provided.

Confrontation And The Re-Privatization Of Domestic Violence, Deborah Tuerkheimer

Michigan Law Review First Impressions

When the Supreme Court transformed the right of confrontation in Crawford v. Washington, the prosecution of domestic violence predictably suffered as a result. But commentators at the time did not anticipate how the Court’s subsequent Confrontation Clause cases would utterly misconceive the nature of domestic violence, producing a flawed understanding of what constitutes a “testimonial” statement. Although the Court’s definition was especially problematic in the domestic violence context, its overly rigid approach finally became intolerable in Michigan v. Bryant, a 2011 case that did not involve domestic violence. In Bryant, the Court resurrected a public–private divide that …

The Crawford Debacle, George Fisher

Michigan Law Review First Impressions

First a toast—to my colleague Jeff Fisher and his Crawford compatriot, Richard Friedman, on the tenth anniversary of their triumph: What they achieved in Crawford is every lawyer’s dream. By dint of sheer vision and lawyerly craft, they toppled what many saw as a flawed confrontation-law regime and put in its place one that promised greater justice. For that, much applause is due. Still there’s no denying their doctrine’s a muddle, if not as conceived, then as realized. Consider the count: Four justices almost agree on Crawford’s contours but patch over the issues that divide them. A fifth justice …

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 mind …

The Limits Of Textualism In Interpreting The Confrontation Clause, Stephanos Bibas

All Faculty Scholarship

No abstract provided.

The Mold That Shapes Hearsay Law, Richard D. Friedman

Articles

In response to an article previously published in the Florida Law Review by Professor Ben Trachtenberg, I argue that the historical thesis of Crawford v. Washington is basically correct: The Confrontation Clause of the Sixth Amendment reflects a principle about how witnesses should give testimony, and it does not create any broader constraint on the use of hearsay. I argue that this is an appropriate limit on the Clause, and that in fact for the most part there is no good reason to exclude nontestimonial hearsay if live testimony by the declarant to the same proposition would be admissible. I …

Confronting The Confrontation Clause: Addressing The Unanswered Question Of Whether Autopsy Reports Are Testimonial Evidence - People V. Hall, Bailey Ince

Touro Law Review

No abstract provided.

An Unappealing Decision For New York Dwi Defendants - People V. Pealer, Christopher Gavin

Touro Law Review

No abstract provided.

Don't Just Do Something! E-Hearsay, The Present Sense Impression, And The Case For Caution In The Rulemaking Process, Liesa L. Richter

American University Law Review

No abstract provided.

Confrontation Control, Pamela R. Metzger

Faculty Journal Articles and Book Chapters

After Crawford v. Washington, 541 U.S. 36, 42 (2004), face-to-face confrontation between accused and accuser is the constitutionally normative mode of presentation for testimonial evidence. Yet, eight years into the Crawford revolution, courts routinely hold that counsel can waive a defendant's confrontation rights without even discussing the matter with the defendant. Why? Because counsel, not client, has the authority to decide whether to confront and cross-examine government witnesses.

This Essay, written as part of the Texas Tech Sixth Amendment Symposium, explores this peculiar and perplexing rule. If confrontation is essential to a constitutionally valid criminal trial, how can defense …

The Sky Is Still Not Falling, Richard D. Friedman

Articles

Cases since Crawford have mainly fallen into two categories. One involves accusations of crime, made by the apparent victim shortly after the incident. In Michigan v. Bryant, a majority of the Court adopted an unfortunately constricted view of the word "testimonial" in this context. That decision was a consequence of the Court having failed to adopt a robust view of when an accused forfeits the confrontation right. How the Court will deal with this situation-one mistake made in an attempt to compensate for another-is a perplexing and important question. This Essay, though, concentrates on the other principal category of post-Crawford …

Confrontation And Forensic Laboratory Reports, Round Four, Richard D. Friedman

Articles

Crawford v. Washington radically transformed the doctrine governing the Confrontation Clause of the Sixth Amendment to the Constitution. Before Crawford, a prosecutor could introduce against an accused evidence of a hearsay statement, even one made in contemplation that it would be used in prosecution, so long as the statement fit within a "firmly rooted" hearsay exception or the court otherwise determined that the statement was sufficiently reliable to warrant admissibility. Crawford recognized that the Clause is a procedural guarantee, governing the manner in which prosecution witnesses give their testimony. Therefore, a prosecutor may not introduce a statement that is testimonial …

Who Said The Crawford Revolution Would Be Easy?, Richard D. Friedman

Articles

One of the central protections of our system of criminal justice is the right of the accused in all criminal prosecutions "to be confronted with the witnesses against him." It provides assurance that prosecution witnesses will give their testimony in the way demanded for centuries by Anglo-American courts-in the presence of the accused, subject to cross-examination- rather than in any other way. Witnesses may not, for example, testify by speaking privately to governmental agents in a police station or in their living rooms. Since shortly after it was adopted, however, the confrontation right became obscured by the ascendance of a …

Originalism In Practice, Lawrence Rosenthal

Lawrence Rosenthal

Originalism is in ascendance. Both in judicial opinions and in the legal academy, arguments for the interpretation of the Constitution based on its original meaning are increasingly prominent. The scholarly literature to date, however, has focused on theory. Supporters and opponents debate the theoretical merits of originalism, but rarely test their views on the merits of originalism by reference to the realities of constitutional adjudication. In science, a theory gains acceptance if it makes testable predictions that are later borne out. Whatever its theoretical merit, originalism deserves recognition as genuinely distinctive and useful approach to constitutional adjudication only if, in …