But What If the Court Reporter is Lying? The Right to Confront Hidden Declarants Found in Transcripts of Former Testimony

47 Pages Posted: 13 Feb 2010 Last revised: 30 Oct 2015

See all articles by Peter Nicolas

Peter Nicolas

University of Washington School of Law

Date Written: February 13, 2010

Abstract

In Crawford v. Washington, the U.S. Supreme Court re-theorized the relationship between hearsay evidence and the Confrontation Clause. Post-Crawford, hearsay statements that are “testimonial” in nature are generally inadmissible when offered against the accused in a criminal case. Yet in Crawford, the Supreme Court held that former testimony is admissible against the accused (despite the fact that it is “testimonial”) if the person who gave the former testimony is unavailable to testify and the accused had a prior opportunity to cross-examine the person.

This manuscript addresses the hidden hearsay and Confrontation Clause problems that arise when an effort is made to prove an unavailable witness’s former testimony through the use of a transcript or stenographic notes, or when the former testimony consists of hearsay statements made by third persons. The manuscript demonstrates that, post-Crawford, these additional layers of hearsay are often testimonial statements, and that the accused thus has a right to confront the court reporter or third person who made the statement, absent a historical exception. The manuscript then demonstrates that, historically, in both the United States and England, when efforts were made to prove former testimony, the accused always had the ability to confront such hidden declarants. Finally, the manuscript proposes practical ways of satisfying the Confrontation Clause that minimize the need for court reporters to appear at trial.

Keywords: Crawford, Melendez-Diaz, Confrontation Clause, Sixth Amendment, Transcript, Court Reporter

Suggested Citation

Nicolas, Peter, But What If the Court Reporter is Lying? The Right to Confront Hidden Declarants Found in Transcripts of Former Testimony (February 13, 2010). 2010 BYU L. Rev., 1149-1194 (2010) . Available at SSRN: https://ssrn.com/abstract=1552289

Peter Nicolas (Contact Author)

University of Washington School of Law ( email )

William H. Gates Hall
Box 353020
Seattle, WA 98105-3020
United States

HOME PAGE: https://www.law.washington.edu/directory/profile.aspx?ID=150

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