'Qualified' Notice-and-Demand Statutes Unconstitutionally Eliminate a Criminal Defendant’s Sixth Amendment Right to 'True' Confrontation: Live Testimony from Witnesses

Hamline Law Review, Vol. 34, 2011

37 Pages Posted: 22 Jan 2011  

Samuel M. Duncan

University of Michigan Law School - JD Candidate Author

Date Written: January 21, 2011

Abstract

This Article contends that "qualified" notice-and-demand statutes, enacted in many states, violate a criminal defendant's Sixth Amendment right to confrontation. Plain notice-and-demand statutes allow a prosecutor to introduce a witness' testimony in written form unless the defendant demands live testimony. Qualified statutes require some showing above a timely demand before requiring that the witness testify in person. These statutes are unconstitutional because the Confrontation Clause, properly understood, protects a defendant's right to "true" confrontation - live testimony from prosecution witnesses - as well as the right to cross-examination. This interpretation is well supported by case law and the history of confrontation at common law, and furthers the reasoning of and principles behind Crawford v. Washington. Further, this Article argues that qualified notice-and-demand statutes are invalid because they conflict with the current interpretation of the Confrontation right, by forcing waiver of objections that would be unquestionably valid under Crawford.

Keywords: Sixth Amendment, Confrontation Clause, Constitutional Law, Criminal Law, Crawford v. Washington

Suggested Citation

Duncan, Samuel M., 'Qualified' Notice-and-Demand Statutes Unconstitutionally Eliminate a Criminal Defendant’s Sixth Amendment Right to 'True' Confrontation: Live Testimony from Witnesses (January 21, 2011). Hamline Law Review, Vol. 34, 2011. Available at SSRN: https://ssrn.com/abstract=1745283

Samuel M. Duncan (Contact Author)

University of Michigan Law School - JD Candidate Author ( email )

Ann Arbor, MI
United States

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