Evidence Commons^™

Admissibility Of Co-Conspirator Statements In A Post-Crawford World, Michael L. Seigel, Daniel Weisman

Michael L Seigel

This Article takes the position that co-conspirator statements must be examined on a case-by-case basis to determine whether they are testimonial and thus subject to exclusion under the Confrontation Clause. Further, in light of the fact that the author of the majority opinions in Crawford and Davis was Justice Antonin Scalia, this Article examines whether interpreting the Sixth Amendment as a bar to the admission of certain coconspirator statements would violate an originalist interpretation of that provision. The conclusion reached is that it would not. In the current era of ever-narrowing rights for criminal defendants, reaffirming the law's commitment to …

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 …

8. Child Witnesses And The Confrontation Clause., Thomas D. Lyon, Julia A. Dente

Thomas D. Lyon

A Defense Attorney’S Guide To Confrontation After Michigan V. Bryant, Kathryn K. Polonsky

Kathryn K Polonsky

In 1603, the Crown charged Sir Walter Raleigh with high treason in part for plotting to murder King James I. In preparing for trial, Lord Cobham, Raleigh’s alleged co-conspirator, was interrogated and signed a sworn confession. During trial, the King used the Crown-procured ex parte testimony of Cobham against Raleigh. Raleigh demanded Cobham be brought before the court so Raleigh might interrogate him “face to face.” Raleigh was sure Cobham would prove his innocence. After all, Cobham had written a letter stating his charges against Raleigh contained no truth.

The Judges refused to allow Raleigh the use of Cobham’s exonerating …