Hearsay's Last Hurrah
David Alan Sklansky
Supreme Court Review, Vol. 1, 2009
UC Berkeley Public Law Research Paper No. 1531334
The Supreme Court’s recent reinterpretation of the Confrontation Clause – in Crawford v. Washington, Davis v. Washington, Giles v. California, and Melendez-Diaz v. Massachusetts – has been praised for decoupling the Sixth Amendment from hearsay law. In reality, though, Crawford and its progeny have woven the hearsay rule into constitutional analysis more tightly than ever. The hearsay rule has long been in retreat throughout the common-law world, and the factors fueling that retreat are likely, ultimately, to weaken the rule in the United States, as well. But for now Crawford is providing hearsay with its last hurrah – at least with respect to evidence introduced against a criminal defendant.
It is sometimes suggested that civil-law countries are warming to the hearsay rule, just as common-law countries are growing tired of it. That is not quite right. In recent decades civil-law countries, particularly in Europe, have bolstered the right of criminal defendants to question their accusers in court or to have them questioned by magistrates. But this is a procedural right, not a rule of evidence: it does not exclude statements, but simply provides an opportunity to challenge them. If questioning the accuser is impossible, because – for example – the accuser is no longer alive, no country but the United States excludes the evidence, except perhaps in the most extraordinary of cases. America’s strong version of the hearsay rule is more and more a global anomaly, and he Crawford line of cases is entrenching that that anomaly, at least for the short term.
That should give us pause, for at least three reasons. First, the hearsay rule has earned its unpopularity. It excludes too much probative evidence with too little justification. This is especially true of the uncompromising, eighteenth-century version of the hearsay rule the Supreme Court has now read into the Sixth Amendment. Second, by treating the Confrontation Clause as, first and foremost, a codification of eighteenth-century evidence rulings, the Crawford line of cases diverts attention from dimensions of confrontation not captured by the hearsay rule – dimensions that may grow increasingly important as scientific evidence plays a larger and larger role in criminal prosecutions. Third and finally, by constitutionalizing the hearsay rule, but only as it applies to evidence introduced against criminal defendants, Crawford threatens to impede the cross-fertilization between the doctrines governing out-of-court statements in criminal cases and the parallel rules in civil cases.
Number of Pages in PDF File: 64
Keywords: hearsay, confrontation, evidenceAccepted Paper Series
Date posted: January 5, 2010 ; Last revised: April 28, 2010
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