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Full-Text Articles in Law

Incitement, Insurrection, Impeachment: Inside The Second Trump Impeachment, Roger Williams University School Of Law, Michael M. Bowden Feb 2021

Incitement, Insurrection, Impeachment: Inside The Second Trump Impeachment, Roger Williams University School Of Law, Michael M. Bowden

School of Law Conferences, Lectures & Events

No abstract provided.


Law School News: Whitehouse, Cicilline To Offer 'Inside View' Of 2nd Trump Impeachment Trial 02-17-2021, Michael M. Bowden Feb 2021

Law School News: Whitehouse, Cicilline To Offer 'Inside View' Of 2nd Trump Impeachment Trial 02-17-2021, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.


Confrontation In The Age Of Plea Bargaining [Comments], William Ortman Jan 2021

Confrontation In The Age Of Plea Bargaining [Comments], William Ortman

Law Faculty Research Publications

No abstract provided.


The Confrontation Right, Richard D. Friedman Jan 2019

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 …


Motion For Leave To File Amicus Curiae Brief And Brief For The National Association For Public Defense And Kentucky Association Of Criminal Defense Lawyers As Amici Curiae In Support Of Petitioner, Sneed V. Burress (U.S. March 24, 2017) (No. 16-8047)., Janet Moore Mar 2017

Motion For Leave To File Amicus Curiae Brief And Brief For The National Association For Public Defense And Kentucky Association Of Criminal Defense Lawyers As Amici Curiae In Support Of Petitioner, Sneed V. Burress (U.S. March 24, 2017) (No. 16-8047)., Janet Moore

Faculty Articles and Other Publications

No abstract provided.


Confrontation As A Rule Of Production, Pamela R. Metzger Jun 2016

Confrontation As A Rule Of Production, Pamela R. Metzger

William & Mary Bill of Rights Journal

No abstract provided.


The Child Quasi-Witness, Richard D. Friedman, Stephen J. Ceci Jan 2015

The Child Quasi-Witness, Richard D. Friedman, Stephen J. Ceci

Articles

This Essay provides a solution to the conundrum of statements made by very young children and offered against an accused in a criminal prosecution. Currently prevailing doctrine allows one of three basic outcomes. First, in some cases the child testifies at trial. But this is not always feasible, and when it is, cross-examination is a poor method for determining the truth. Second, evidence of the child's statement may be excluded, which denies the adjudicative process of potentially valuable information. Third, the evidence may be admitted without the child testifying at trial, which leaves the accused with no practical ability to …


Making The Right Call For Confrontation At Felony Sentencing, Shaakirrah R. Sanders Apr 2014

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 Mold That Shapes Hearsay Law, Richard D. Friedman Jan 2014

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 …


People V. Rojas: The Expanding Concept Of Unavailability, Brian Wade Uhl May 2013

People V. Rojas: The Expanding Concept Of Unavailability, Brian Wade Uhl

Pepperdine Law Review

No abstract provided.


Sequestering Witnesses: Does The Practice Interfere With Defendants' Constitutional Rights?, Harold Baer Jr. Apr 2013

Sequestering Witnesses: Does The Practice Interfere With Defendants' Constitutional Rights?, Harold Baer Jr.

Journal of the National Association of Administrative Law Judiciary

No abstract provided.


Who Said The Crawford Revolution Would Be Easy?, Richard D. Friedman Jan 2012

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 …


The Sky Is Still Not Falling, Richard D. Friedman Jan 2012

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 Jan 2012

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 …


Supreme Court Criminal Law Jurisprudence - October 2008 Term, Richard Klein Jul 2011

Supreme Court Criminal Law Jurisprudence - October 2008 Term, Richard Klein

Richard Daniel Klein

No abstract provided.


Confrontation And Domestic Violence Post-Davis: Is There And Should There Be A Doctrinal Exception, Eleanor Simon Jan 2011

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 …


Supreme Court Criminal Law Jurisprudence - October 2008 Term, Richard Klein Jan 2010

Supreme Court Criminal Law Jurisprudence - October 2008 Term, Richard Klein

Scholarly Works

No abstract provided.


The Confrontation Clause And The Hearsay Rule: What Hearsay Exceptions Are Testimonial?, Paul W. Grimm, Jerome E. Deise, John R. Grimm Jan 2010

The Confrontation Clause And The Hearsay Rule: What Hearsay Exceptions Are Testimonial?, Paul W. Grimm, Jerome E. Deise, John R. Grimm

Faculty Scholarship

No abstract provided.


"An Opportunity For Effective Cross-Examination": Limits On The Confrontation Right Of The Pro Se Defendant, Alanna Clair May 2009

"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 Jan 2009

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. …


Does An Accused Forfeit The Confrontation Right By Murdering A Witness, Absent A Purpose To Render Her Unavailable?, Richard D. Friedman Jan 2008

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?


Is A Forensic Laboratory Report Identifying A Substance As A Narcotic 'Testimonial'?, Richard D. Friedman Jan 2008

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)?


Crawford And Davis: A Personal Reflection, Richard D. Friedman Jan 2007

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.


Crawford, Davis, And Way Beyond, Richard D. Friedman Jan 2007

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 Jan 2007

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 …


We Really (For The Most Part) Mean It!, Richard D. Friedman Jan 2006

We Really (For The Most Part) Mean It!, Richard D. Friedman

Articles

I closed my petition for certiorari in Hammon v. Indiana by declaring, “ ‘We really mean it!’ is the message that lower courts need to hear, and that decision of this case can send.” The prior year, Crawford v. Washington had transformed the law of the Confrontation Clause, holding that an out-ofcourt statement that is testimonial in nature may be admitted against an accused only if the maker of the statement is unavailable and the accused has had an opportunity to cross-examine her. But Crawford deliberately left undetermined what the term “testimonial” meant. Many lower courts gave it a grudging …


Confrontation After Crawford, Richard D. Friedman Jan 2005

Confrontation After Crawford, Richard D. Friedman

Articles

The following edit excerpt, drawn from "The Confrontation Clause Re-Rooted and Transformed," 2003-04 Cato Supreme Court Review 439 (2004), by Law School Professor Richard D. Friedman, discusses the impact, effects, and questions generated by the U.S. Supreme Court's ruling in Crawford v. Washington last year that a defendant is entitled to confront and cross-examine any testimonial statement presented against him. In Crawford, the defendant, charged with attacking another man with a knife, contested the trial court's admission of a tape-recorded statement his wife made to police without giving him the opportunity to cross-examine. The tiral court admitted the statement, and …


Grappling With The Meaning Of 'Testimonial', Richard D. Friedman Jan 2005

Grappling With The Meaning Of 'Testimonial', Richard D. Friedman

Articles

Crawford v. Washington, has adopted a testimonial approach to the Confrontation Clause of the Sixth Amendment. Under this approach, a statement that is deemed to be testimonial in nature may not be introduced at trial against an accused unless he has had an opportunity to cross-examine the person who made the statement and that person is unavailable to testify at trial. If a statement is not deemed to be testimonial, then the Confrontation Clause poses little if any obstacle to its admission.2 A great deal therefore now rides on the meaning of the word "testimonial."


Adjusting To Crawford: High Court Decision Restores Confrontation Clause Protection, Richard D. Friedman Jan 2004

Adjusting To Crawford: High Court Decision Restores Confrontation Clause Protection, Richard D. Friedman

Articles

In Crawford v. Washington, 124 S. Ct. 1354 (2004), the U.S. Supreme Court radically transformed its doctrine governing the Confrontation Clause of the Sixth Amendment to the U.S. Constitution. Craitiord is a very positive development, restoring to its central position one of the basic protections of the common law system of criminal justice. But the decision leaves many open questions, and all lawyers involved in the criminal justice process will have to adjust to the new regime that it creates. This article outlines and summarizes the problems with the law as it stood before Crait/brd. It then explains the theoretical …


Face To Face With The Right Of Confrontation, Richard D. Friedman Jan 2004

Face To Face With The Right Of Confrontation, Richard D. Friedman

Other Publications

This article is an edited excerpt from the amicus curiae brief filed in Crawford v. Washington, heard before the United States Supreme Court on November 10, 2003. Prof. Friedman wrote the brief for the Court.