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Preface: Reclaiming Criminal Procedure, Jeffrey L. Fisher

Jeffrey L Fisher

The key to making sense of Crawford is to appreciate that the decision turned the right to confrontation from an evidentiary principle back into a criminal procedure right. As the Court ultimately put it, the Confrontation Clause "commands . . . that reliability be assessed in a particular manner by testing in the crucible of cross-examination. The Clause Thus reflects a judgment, not only about the desirability of reliable evidence (a point on which there could be little dissent), but about how reliability can best be determined.

This way of conceptualizing a constitutional right is unique to criminal procedure. Instead …