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Full-Text Articles in Legal History
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 …
On The Fortieth Anniversary Of The Miranda Case: Why We Needed It, How We Got It--And What Happened To It, Yale Kamisar
On The Fortieth Anniversary Of The Miranda Case: Why We Needed It, How We Got It--And What Happened To It, Yale Kamisar
Articles
Last year (the year I gave the talk on which this article is based) marked the fortieth anniversary of Miranda v. Arizona,' one of the most praised, most maligned-and probably one of the most misunderstood-Supreme Court cases in American history. It is difficult, if not impossible, to evaluate Miranda without looking back at the test for the admissibility of confessions that preceded it.
The Confrontation Clause Re-Rooted And Transformed, Richard D. Friedman
The Confrontation Clause Re-Rooted And Transformed, Richard D. Friedman
Articles
For several centuries, prosecution witnesses in criminal cases have given their testimony under oath, face to face with the accused, and subject to cross-examination at trial. The Confrontation Clause of the Sixth Amendment to the U.S. Constitution guarantees the procedure, providing that ‘‘[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witness against him.’’ In recent decades, however, judicial protection of the right has been lax, because the U.S. Supreme Court has tolerated admission of outof- court statements against the accused, without cross-examination, if the statements are deemed ‘‘reliable’’ or ‘‘trustworthy.’’ …
"Can (Did) Congress 'Overrule' Miranda?, Yale Kamisar
"Can (Did) Congress 'Overrule' Miranda?, Yale Kamisar
Articles
I think the great majority of judges, lawyers, and law professors would have concurred in Judge Friendly's remarks when he made them thirty-three years ago. To put it another way, I believe few would have had much confidence in the constitutionality of an anti-Miranda provision, usually known as § 3501 because of its designation under Title 18 of the United States Code, a provision of Title II of the Omnibus Crime Control and Safe Streets Act of 1968 (hereinafter referred to as the Crime Act or the Crime Bill), when that legislation was signed by the president on June 19, …
Kauper's 'Judicial Examination Of The Accused' Forty Years Later—Some Comments On A Remarkable Article, Yale Kamisar
Kauper's 'Judicial Examination Of The Accused' Forty Years Later—Some Comments On A Remarkable Article, Yale Kamisar
Articles
For a long time before Professor Paul Kauper wrote "Judicial Examination of the Accused" in 1932, and for a long time thereafter, the "legal mind" shut out the de facto inquisitorial system that characterized American criminal procedure. Paul Kauper could not look away. He recognized the "naked, ugly facts" (p. 1224) and was determined to do something about them -more than thirty years before Escobedo v. Illinois' or Miranda v. Arizona.2