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Articles 1 - 30 of 67
Full-Text Articles in Evidence
Supreme Court, Bronx County, People V. Paul, Adam D'Antonio
Supreme Court, Bronx County, People V. Paul, Adam D'Antonio
Touro Law Review
No abstract provided.
Making The Right Call For Confrontation At Felony Sentencing, Shaakirrah R. Sanders
Making The Right Call For Confrontation At Felony Sentencing, Shaakirrah R. Sanders
University of Michigan Journal of Law Reform
Felony sentencing courts have discretion to increase punishment based on un-cross-examined testimonial statements about several categories of uncharged, dismissed, or otherwise unproven criminal conduct. Denying defendants an opportunity to cross-examine these categories of sentencing evidence undermines a core principle of natural law as adopted in the Sixth Amendment: those accused of felony crimes have the right to confront adversarial witnesses. This Article contributes to the scholarship surrounding confrontation rights at felony sentencing by cautioning against continued adherence to the most historic Supreme Court case on this issue, Williams v. New York. This Article does so for reasons beyond the unacknowledged …
The Limits Of Textualism In Interpreting The Confrontation Clause, Stephanos Bibas
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
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.
Someone Call 911, Crawford Is Dying - People V. Duhs, Caroline Knoepffler
Someone Call 911, Crawford Is Dying - People V. Duhs, Caroline Knoepffler
Touro Law Review
No abstract provided.
United States V. Salvucci: The Problematic Absence Of Automatic Standing, William C. Bollard
United States V. Salvucci: The Problematic Absence Of Automatic Standing, William C. Bollard
Pepperdine Law Review
The United States Supreme Court recently abolished the automatic standing rule in United States v. Salvucci. The author analyzes the difficulties created for the criminal defendant charged with a possessory crime. In particular, this note focuses on the inequitable position the defendant is placed in when his suppression hearing testimony is used as a tool to impeach subsequent testimony offered at trial. The author continues by pointing out that the "prosecutorial self-contradiction," sought to be abolished in Salvucci, remains a part of our present judicial system. In conclusion, the author offers several considerations that will necessarily be an integral part …
Substance And Method In The Year 2000, Akhil Reed Amar
Substance And Method In The Year 2000, Akhil Reed Amar
Pepperdine Law Review
No abstract provided.
The Decline Of The Confrontation Clause In New York - People V. Encarnacion, Anthony Fasano
The Decline Of The Confrontation Clause In New York - People V. Encarnacion, Anthony Fasano
Touro Law Review
No abstract provided.
Turn-Coat Disclosure: The Importance Of Following Procedure - Turturro V. City Of New York, Brittany A. Fiorenza
Turn-Coat Disclosure: The Importance Of Following Procedure - Turturro V. City Of New York, Brittany A. Fiorenza
Touro Law Review
No abstract provided.
New York’S Grant Of Greater Fifth Amendment Rights To Sexual Predators In Somta Proceedings - New York V. Suggs, Lina R. Carbuccia
New York’S Grant Of Greater Fifth Amendment Rights To Sexual Predators In Somta Proceedings - New York V. Suggs, Lina R. Carbuccia
Touro Law Review
No abstract provided.
Trial Error Blunder: Compounded Use Of Defendant’S Post-Arrest Silence For Impeachment And Summation Purposes Is Not Harmless - People V. Tucker, Robert Mitchell
Trial Error Blunder: Compounded Use Of Defendant’S Post-Arrest Silence For Impeachment And Summation Purposes Is Not Harmless - People V. Tucker, Robert Mitchell
Touro Law Review
No abstract provided.
The Sky Is Still Not Falling, Richard D. Friedman
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
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
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 …
Kumho Tire Co. V. Carmichael: The Supreme Court Follows Up On The Daubert Test, Martin A. Schwartz
Kumho Tire Co. V. Carmichael: The Supreme Court Follows Up On The Daubert Test, Martin A. Schwartz
Martin A. Schwartz
No abstract provided.
Confrontation And Domestic Violence Post-Davis: Is There And Should There Be A Doctrinal Exception, Eleanor Simon
Confrontation And Domestic Violence Post-Davis: Is There And Should There Be A Doctrinal Exception, Eleanor Simon
Michigan Journal of Gender & Law
Close to five million intimate partner rapes and physical assaults are perpetrated against women in the United States annually. Domestic violence accounts for twenty percent of all non-fatal crime experienced by women in this county. Despite these statistics, many have argued that in the past six years the Supreme Court has "put a target on [the] back" of the domestic violence victim, has "significantly eroded offender accountability in domestic violence prosecutions," and has directly instigated a substantial decline in domestic violence prosecutions. The asserted cause is the Court's complete and groundbreaking re-conceptualization of the Sixth Amendment right of a criminal …
Melendez-Diaz And The Right To Confrontation, Craig M. Bradley
Melendez-Diaz And The Right To Confrontation, Craig M. Bradley
Chicago-Kent Law Review
In Crawford v. Washington, the Supreme Court overruled Ohio v. Roberts and adopted new law concerning the use of hearsay testimony at criminal trials. This was based on the Sixth Amendment's command that "In all criminal prosecutions the accused shall enjoy the right . . . to be confronted with the witnesses against him .. " On its face this provision seems to say that the accused has the right to cross-examine anybody who testifies for the prosecution at trial, whether as a live witness or through hearsay. The Supreme Court acknowledged much of this in Crawford, but …
"An Opportunity For Effective Cross-Examination": Limits On The Confrontation Right Of The Pro Se Defendant, Alanna Clair
"An Opportunity For Effective Cross-Examination": Limits On The Confrontation Right Of The Pro Se Defendant, Alanna Clair
University of Michigan Journal of Law Reform
The rights of a defendant to confront his accusers and conduct his defense without the assistance of counsel are sacrosanct in the American judicial system. The rights of the defendant are even sometimes exalted at the expense of the rights of the public or of victims of crime. This Note examines the problem of a pro se defendant using his confrontation right to intimidate or harass his alleged victims testifying against him. It is well-established that the confrontation right is not unconditional. The problem comes in determining whether the courts can place limits on the confrontation right of a pro …
Giles V. California: A Personal Reflection, Richard D. Friedman
Giles V. California: A Personal Reflection, Richard D. Friedman
Articles
In this Essay, Professor Friedman places Giles v. California in the context of the recent transformation of the law governing the Confrontation Clause of the Sixth Amendment. He contends that a robust doctrine of forfeiture is an integral part of a sound conception of the confrontation right. One reason this is so is that cases fitting within the traditional hearsay exception for dying declarations can be explained as instances of forfeiture. This explanation leads to a simple structure of confrontation law, qualified by the principle that the confrontation right may be waived or forfeited but not subject to genuine exceptions. …
Is A Forensic Laboratory Report Identifying A Substance As A Narcotic 'Testimonial'?, Richard D. Friedman
Is A Forensic Laboratory Report Identifying A Substance As A Narcotic 'Testimonial'?, Richard D. Friedman
Articles
Is a state forensic analyst's laboratory report, prepared for use in a criminal proceeding and identifying a substance as cocaine, "testimonial" evidence and so subject to the demands of the Confrontation Clause as set forth in Crawford v. Washington, 541 U.S. 36 (2004)?
Does An Accused Forfeit The Confrontation Right By Murdering A Witness, Absent A Purpose To Render Her Unavailable?, Richard D. Friedman
Does An Accused Forfeit The Confrontation Right By Murdering A Witness, Absent A Purpose To Render Her Unavailable?, Richard D. Friedman
Articles
If an accused murdered a witness, should he be deemed to have forfeited the right under the Sixth Amendment "to be confronted with" the witness, absent proof that the accused committed the murder for the purpose of rendering her unavailable as a witness?
Crawford, Davis, And Way Beyond, Richard D. Friedman
Crawford, Davis, And Way Beyond, Richard D. Friedman
Articles
Until 1965, the Confrontation Clause of the Sixth Amendment to the United States Constitution hardly mattered. It was not applicable against the states, and therefore had no role whatsoever in the vast majority of prosecutions. Moreover, if a federal court was inclined to exclude evidence of an out-of-court statement, it made little practical difference whether the court termed the statement hearsay or held that the evidence did not comply with the Confrontation Clause.
Forfeiture Of The Confrontation Right After Crawford And Davis, Richard D. Friedman
Forfeiture Of The Confrontation Right After Crawford And Davis, Richard D. Friedman
Articles
So my topic this morning is on forfeiture of the confrontation right, which I think plays a central role in confrontation doctrine. And to try to present that, let me state the entirety of confrontation doctrine as briefly as I can. This is, at least, what I think the doctrine is and what it can be: A testimonial statement should not be admissible against an accused to prove the truth of what it asserts unless the accused either has had or will have an opportunity to confront the witness-which should occur at trial unless the witness is then unavailable-or has …
Crawford And Davis: A Personal Reflection, Richard D. Friedman
Crawford And Davis: A Personal Reflection, Richard D. Friedman
Articles
I have to say that when I stood up to argue Hammon I felt the wind at my back. I was basically a lawyer with an easy case, and there wasn't anything particularly unpredictable at the argument of Hammon. Now it got a little bit interesting, as I will explain later, because to a certain extent I was trying to argue the other case as well. But Hammon itself was sort of ordinary, normal law.
Holmes V. South Carolina Upholds Trial By Jury, Samuel R. Gross
Holmes V. South Carolina Upholds Trial By Jury, Samuel R. Gross
Articles
Bobby Lee Holmes was convicted of a brutal rape-murder and sentenced to death. The only evidence that connected him to the crime was forensic: a palm print, and blood and fiber evidence. (Biological samples taken from the victim for two rape kits were compromised and yielded no identifiable evidence.) Holmes claimed that the state's forensic evidence was planted and mishandled, and that the rape and murder were committed by another man, Jimmy McCaw White. At a pretrial hearing three witnesses testified that they saw White near the victim's house at about the time of the crime, and four others testified …
Davis And Hammon: A Step Forward, Or A Step Back?, Tom Lininger
Davis And Hammon: A Step Forward, Or A Step Back?, Tom Lininger
Michigan Law Review First Impressions
Prosecutors, defense attorneys, and lower court judges hoped that the Supreme Court’s ruling in the consolidated cases of Davis v. Washington and Hammon v. Indiana (hereafter simply Davis) would provide a primer on testimonial hearsay. In retrospect, these hopes were somewhat unrealistic. The Davis ruling could not possibly clear up all the confusion that followed Crawford v. Washington, the landmark 2004 case in which the Court strengthened the right of the accused to confront declarants of testimonial hearsay. In Davis, the Court focused on the facts under review and developed a taxonomy that will be useful in similar cases, but …
Circling Around The Confrontation Clause: Redefined Reach But Not A Robust Right, Lisa Kern Griffin
Circling Around The Confrontation Clause: Redefined Reach But Not A Robust Right, Lisa Kern Griffin
Michigan Law Review First Impressions
The Supreme Court’s consolidated ruling in United States v. Davis and United States v. Hammon is a classic of the genre of consensus opinions to which the Roberts Court aspired in its first, transitional term. The opinion, authored by Justice Scalia, contains practical accommodations unusual in a decision by the Court’s fiercest proponent of first principles. The restraint that characterized the term is, of course, more about considerations of logistics (including the desire to avoid re-arguments after the mid-term replacement of Justice O’Connor) than about the alignment of logic. Because it reflects temporary institutional constraints rather than intellectual agreement, the …
Davis/Hammon, Domestic Violence, And The Supreme Court: The Case For Cautious Optimism, Joan S. Meier
Davis/Hammon, Domestic Violence, And The Supreme Court: The Case For Cautious Optimism, Joan S. Meier
Michigan Law Review First Impressions
The Supreme Court’s consolidated decision in Davis v. Washington and Hammon v. Indiana offers something for everyone: by “splitting the difference” between the two cases—affirming one and reversing the other—the opinion provides much grist for advocates’ mills on both sides of this issue. While advocates for defendants’ rights are celebrating the opinion’s continued revitalization of the right to confrontation, which began in Crawford v. Washington, advocates for victims have cause for celebration as well: the decision is notable for its reflection of the Court’s growing—albeit incomplete— awareness and understanding of the dynamics of domestic violence and their implications for justice. …
Still "Left In The Dark": The Confrontation Clause And Child Abuse Cases After Davis V. Washington, Anthony J. Franze, Jacob E. Smiles
Still "Left In The Dark": The Confrontation Clause And Child Abuse Cases After Davis V. Washington, Anthony J. Franze, Jacob E. Smiles
Michigan Law Review First Impressions
In his concurring opinion in Crawford v. Washington, Chief Justice Rehnquist criticized the majority for holding that the Confrontation Clause applies to “testimonial” statements but leaving for “another day” any effort to define sufficiently what “testimonial” means. Prosecutors and defendants, he said, “should not be left in the dark in this manner.” Over the next two years, both sides grappled with the meaning of testimonial, each gleaning import from sections of Crawford that seemingly proved their test was the right one. When the Court granted certiorari in Davis v. Washington and Hammon v. Indiana (hereinafter Davis), hopes were high that …