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Rescued From The Grave And Then Covered With Mud: Justice Scalia And The Unfinished Restoration Of The Confrontation Right, Richard D. Friedman
Rescued From The Grave And Then Covered With Mud: Justice Scalia And The Unfinished Restoration Of The Confrontation Right, Richard D. Friedman
Articles
Some years before his death, when asked which was his favorite among his opinions, Antonin Scalia named Crawford v. Washington. It was a good choice. Justice Scalia's opinion in Crawford reclaimed the Confrontation Clause of the Sixth Amendment to the Constitution and restored it to its rightful place as one of the central protections of our criminal justice system. He must have found it particularly satisfying that the opinion achieved this result by focusing on the historical meaning of the text, and that it gained the concurrence of all but two members of the Court, from all ideological positions.
Jack Weinstein And The Missing Pieces Of The Hearsay Puzzle, Richard D. Friedman
Jack Weinstein And The Missing Pieces Of The Hearsay Puzzle, Richard D. Friedman
Articles
For the first three quarters of the twentieth century, the Wigmore treatise was the dominant force in organizing, setting out, and explaining the American law of evidence. Since then, the first two of those roles have been taken over in large part by the Federal Rules of Evidence (Rules). And the third has been performed most notably by the Weinstein treatise. Judge Jack Weinstein was present at the creation of the Rules and before. Though he first made his name in Civil Procedure, while still a young man he joined two of the stalwarts of evidence law, Edmund Morgan and …
The Mold That Shapes Hearsay Law, Richard D. Friedman
The Mold That Shapes Hearsay Law, Richard D. Friedman
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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 …
Confrontation And Forensic Laboratory Reports, Round Four, Richard D. Friedman
Confrontation And Forensic Laboratory Reports, Round Four, Richard D. Friedman
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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
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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 …
Holmes V. South Carolina Upholds Trial By Jury, Samuel R. Gross
Holmes V. South Carolina Upholds Trial By Jury, Samuel R. Gross
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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 …
Crawford Surprises: Mostly Unpleasant, Richard D. Friedman
Crawford Surprises: Mostly Unpleasant, Richard D. Friedman
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Crawford v. Washington should not have been surprising. The Confrontation Clause guarantees a criminal defendant the right "to be confronted with the witnesses against him." The doctrine of Ohio v. Roberts, treating the clause as a general proscription against the admission of hearsay-except hearsay that fits within a "firmly rooted" exception or is otherwise deemed reliable-had so little to do with the constitutional text, or with the history or principle behind it, that eventually it was bound to be discarded. And the appeal of a testimonial approach to the clause seemed sufficiently strong to yield high hopes that ultimately the …
Confrontation After Crawford, Richard D. Friedman
Confrontation After Crawford, Richard D. Friedman
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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 …
Adjusting To Crawford: High Court Decision Restores Confrontation Clause Protection, Richard D. Friedman
Adjusting To Crawford: High Court Decision Restores Confrontation Clause Protection, Richard D. Friedman
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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 …
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.’’ …
Face To Face': Rediscovering The Right To Confront Prosecution Witnesses, Richard D. Friedman
Face To Face': Rediscovering The Right To Confront Prosecution Witnesses, Richard D. Friedman
Articles
The Sixth Amendment to the United States Constitution protects the right of an accused 'to confront the witnesses against him'. The United States Supreme Court has treated this Confrontation Clause as a broad but rather easily rebuttable rule against using hearsay on behalf of a criminal prosecution; with respect to most hearsay, the exclusionary rule is overcome if the court is persuaded that the statement is sufficiently reliable, and the court can reach that conclusion if the statement fits within a 'firmly rooted' hearsay exception. This article argues that this framework should be abandoned. The clause should not be regarded …
Minimizing The Jury Over-Valuation Concern (Visions Of Rationality In Evidence Law Symposium), Richard D. Friedman
Minimizing The Jury Over-Valuation Concern (Visions Of Rationality In Evidence Law Symposium), Richard D. Friedman
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A great deal of the rhetoric of evidence discourse concerns the supposed cognitive inadequacies of the jury. In various contexts we are told that although an item of evidence is probative, it must be excluded because the jury will give it too much weight. I believe this approach has played far too great a role in evidentiary law, and that it is an interesting project to see whether we can construct a satisfactory body of law without relying at all on the cognitive inadequacy argument. I think that, at least to a large extent, we can. In some settings, where …
Dial-In Testimony, Richard D. Friedman, Bridget Mary Mccormack
Dial-In Testimony, Richard D. Friedman, Bridget Mary Mccormack
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For several hundred years, one of the great glories of the common law system of criminal justice has been the requirement that prosecution witnesses give their testimony in the presence of the accused" face to face," in the time-honored phrase-under oath, subject to cross-examination, and, unless unfeasible, in open court. In the United States, this principle is enshrined in the Confrontation Clause of the Sixth Amendment, which provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." But now a new way is developing for witnesses for the prosecution …
The Conundrum Of Children, Confrontation, And Hearsay, Richard D. Friedman
The Conundrum Of Children, Confrontation, And Hearsay, Richard D. Friedman
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The adjudication of child abuse claims poses an excruciatingly difficult conundrum. The crime is a terrible one, but false convictions are abhorrent. Often the evidence does not support a finding of guilt or innocence with sufficient clarity to allow a decision free of gnawing doubt. In many cases, a large part of the problem is that the prosecution's case depends critically on the statement or testimony of a young child. Even with respect to adult witnesses, the law of hearsay and confrontation is very perplexing, as anyone who has studied American evidentiary law and read Supreme Court opinions on the …
A Suggestion On Suggestion, Richard D. Friedman, Stephen J. Ceci
A Suggestion On Suggestion, Richard D. Friedman, Stephen J. Ceci
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Part I of the full article briefly describes the history and current slate of research into children's suggestibility. In this part, we argue that, although psychological researchers disagree considerably over the degree to which he suggestibility of young children may lead to false allegations of sexual abuse, there is an overwhelming consensus that children are suggestible to a degree that, we believe, must be regarded as significant. In presenting this argument, we respond to the contentions of revisionist scholars, particularly those recently expressed by Professor Lyon. We show that there is good reason to believe the use of highly suggestive …
The Suggestibility Of Children: Scientific Research And Legal Implications, Stephen J. Ceci, Richard D. Friedman
The Suggestibility Of Children: Scientific Research And Legal Implications, Stephen J. Ceci, Richard D. Friedman
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In this Article, Professors Ceci and Friedman analyze psychological studies on children's suggestibility and find a broad consensus that young children are suggestible to a significant degree. Studies confirm that interviewers commonly use suggestive interviewing techniques that exacerbate this suggestibility, creating a significant risk in some forensic contexts-notably but not exclusively those of suspected child abuse-that children will make false assertions of fact. Professors Ceci and Friedman address the implications of this difficulty for the legal system and respond to Professor Lyon's criticism of this view recently articulated in the Cornell Law Review. Using Bayesian probability theory, Professors Ceci and …
Lilly V. Virginia Glimmers Of Hope For The Confrontation Clause?, Richard D. Friedman
Lilly V. Virginia Glimmers Of Hope For The Confrontation Clause?, Richard D. Friedman
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In 1662, in The Case of Thomas Tong and Others, which involved charges of treason against several defendants, the judges of the King's Bench conferred on a crucial set of points of procedure. As reported by one of the judges, Sir John Kelyng, the judges agreed unanimously that a pretrial confession made to the authorities was evidence against the Party himself who made the Confession, and indeed, if adequately proved could support a conviction of that party without additional witnesses to the treason itself. But -- again unanimously, and quite definitively -- the judges also agreed that the confession cannot …
Confrontation: The Search For Basic Principles, Richard D. Friedman
Confrontation: The Search For Basic Principles, Richard D. Friedman
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The Sixth Amendment to the Constitution guarantees the accused in a criminal prosecution the right "to be confronted with the Witnesses against him."' The Confrontation Clause clearly applies to those witnesses who testify against the accused at trial. Moreover, it is clear enough that confrontation ordinarily includes the accused's right to have those witnesses brought "face-toface," in the time-honored phrase, when they testify.2 But confrontation is much more than this "face-to-face" right. It also comprehends the right to have witnesses give their testimony under oath and to subject them to crossexamination. 3 Indeed, the Supreme Court has treated the accused's …
Truth And Its Rivals In The Law Of Hearsay And Confrontation (Symposium: Truth And Its Rivals: Evidence Reform And The Goals Of Evidence Law)." , Richard D. Friedman
Truth And Its Rivals In The Law Of Hearsay And Confrontation (Symposium: Truth And Its Rivals: Evidence Reform And The Goals Of Evidence Law)." , Richard D. Friedman
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In this paper, I will look at the problem of hearsay and confrontation through the lens offered by this symposium's theme of "truth and its rivals." I will ask: To what extent does the law of hearsay and confrontation aspire to achieve the goal of truth in litigation? To what extent does it, or should it, seek to achieve other goals, or to satisfy other constraints on the litigation system? And, given the ends that it seeks to achieve, what should the shape of the law in this area be? My principal conclusions are as follows: In most settings, the …
Thoughts From Across The Water On Hearsay And Confrontation, Richard D. Friedman
Thoughts From Across The Water On Hearsay And Confrontation, Richard D. Friedman
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This article draws on the history of the hearsay rule, and on recent decisions of the European Court of Human Rights, to argue that the right to confrontation should be recognised as a basic principle of the law of evidence, and that aspects of the Law Commission's proposals for reform of the hearsay rule, and of the Home Office's proposals for restrictions on the right of cross-examination, are therefore unsatisfactory.
Confrontation And The Definition Of Chutzpa, Richard D. Friedman
Confrontation And The Definition Of Chutzpa, Richard D. Friedman
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You may know the standard illustration of chutzpa - the man who kills both his parents and then begs the sentencing court to have mercy on an orphan. In this article, I discuss a case of chutzpa that is nearly as outlandish - the criminal defendant who, having rendered his victim unavailable to testify, contends that evidence of the victim's statement should not be admitted against him because to do so would violate his right to confront her. I contend that in a case like this the defendant should be deemed to have forfeited the confrontation right. On the same …
Prior Statements Of A Witness: A Nettlesome Corner Of The Hearsay Thicket, Richard D. Friedman
Prior Statements Of A Witness: A Nettlesome Corner Of The Hearsay Thicket, Richard D. Friedman
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In Tome v United States, for the fifth time in eight years, the Supreme Court decided a case presenting the problem of how a child's allegations of sexual abuse should be presented in court. Often the child who charges that an adult abused her is unable to testify at trial, or at least unable to testify effectively under standard procedures. These cases therefore raise intriguing and difficult questions related to the rule against hearsay and to an accused's right under the Sixth Amendment to confront the witnesses against him. One would hardly guess that, however, from the rather arid debate …
Confrontation And The Utility Of Rules, Richard D. Friedman, Ronald J. Allen, Alex Stein, Roger C. Park, Margaret A. Berger, Nancy J. King, John Jackson, Eleanor Swift, Craig R. Callen, Eileen A. Scallen
Confrontation And The Utility Of Rules, Richard D. Friedman, Ronald J. Allen, Alex Stein, Roger C. Park, Margaret A. Berger, Nancy J. King, John Jackson, Eleanor Swift, Craig R. Callen, Eileen A. Scallen
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There is a good reason why evidence scholars continue to be fascinated and perplexed, and some courts continue at least to be perplexed, by the types of evidence that tend to be lumped together misleadingly under the headings nonassertive conduct or implied assertions. Evidence of this sort highlights a paradox of the prevailing law of hearsay. I believe that this paradox cannot be resolved without fundamentally transforming the structure of that law. Thus, while I agree - within the current framework - with many of the insights so ably stated in this Symposium, I think evidence scholars must devote their …
Toward A Partial Economic, Game-Theoretic Analysis Of Hearsay, Richard D. Friedman
Toward A Partial Economic, Game-Theoretic Analysis Of Hearsay, Richard D. Friedman
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In this Article, I offer a fundamentally different and nondoctrinaire way of approaching hearsay questions. In brief, I take the view that the resolution of a hearsay dispute, when the declarant is not on the stand, is essentially a matter of deciding who should bear the burden of producing the declarant, or more precisely, how courts should allocate that burden. Adopting a simple procedural improvement, concerning the examination of the declarant if she is produced as a witness, allows the court to allocate the burden optimally. If live testimony by the declarant would be more probative than prejudicial, then most …
Infinite Strands, Infinitesimally Thin: Storytelling, Bayesianism, Hearsay And Other Evidence, Richard D. Friedman
Infinite Strands, Infinitesimally Thin: Storytelling, Bayesianism, Hearsay And Other Evidence, Richard D. Friedman
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David Schum has long been one of our keenest commentators on questions of inference and proof. He has been particularly interested in, and illuminating on, the subject of "cascaded," or multi-step, inference.' This is a subject of importance to lawyers, because most evidence at trial can be analyzed in terms of cascaded inference. Usually, the proposition that the fact finder2 might immediately infer from the evidence is not itself an element of a crime, claim, or defense. Most often, an extra inference would be required to jump from that proposition to a proposition that the law deems material. Thus, inference …
Improving The Procedure For Resolving Hearsay Issues, Richard D. Friedman
Improving The Procedure For Resolving Hearsay Issues, Richard D. Friedman
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In this article, I propose two changes in the way hearsay issues are usually resolved. First, in some circumstances courts should divide the burdens of producing the declarant-for example, by imposing the physical burden on the proponent and the financial burden on the opponent. Second, no matter how the declarant is produced as a witness, she should ordinarily testify as part of the proponent's case, subject to cross-examination by the opponent. If the declarant does become a witness, the admissibility of her out-of-court statement should not be resolved until her current testimony about the underlying events is received.
A Review Of The Proposed Michigan Rules Of Evidence, James K. Robinson, John W. Reed
A Review Of The Proposed Michigan Rules Of Evidence, James K. Robinson, John W. Reed
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On January 6, 1977, the Supreme Court of Michigan entered an order stating that it is considering adoption of the proposed Michigan Rules of Evidence which were submitted to the Court by the committee which it appointed in March 1975. The Court has solicited comments from interested persons regarding the proposed rules. A copy of the Supreme Court's order is published in this issue of the Bar Journal. The proposed rules are published in the January 26, 1977, issue of North Western Reporter, Second Series (Michigan Edition). The purpose of this article is to review in general the background and …
Bad News And Good News, John W. Reed
Bad News And Good News, John W. Reed
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I have been asked to visit with you about some of my current interests in the evidence field, in which I teach. When you invite an academic lawyer to speak at your meeting, you obviously expect of him something other than the latest hot tips on trial strategy and tactics, something other than a speech entitled "Reflections on My Last Eleven Victories in Court." Others can do that for you, probably at lunch - or, even better, at cocktails with the successes more impressive and the defeats more forgivable under the influence of an ounce or two of alcohol.
What Is This Thing Called Hearsay?, John W. Reed
What Is This Thing Called Hearsay?, John W. Reed
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This article is based on an address delivered at the 1956 Advocacy Institute at the University of Michigan. A re-examination of elementary principles, the discussion proceeds on the express assumption that much of the uncertainty and confusion in usa of the hearsay rule is unnecessary because it is due to failure to recall and employ these principles.