Crawford & Beyond: How Far Have We Traveled from Roberts after All?

28 Pages Posted: 13 Jun 2012 Last revised: 21 Nov 2012

Brooks Holland

Gonzaga University School of Law

Date Written: June 13, 2012

Abstract

This paper reflects on the confrontation right that Crawford v. Washington, 541 U.S. 36 (2004), has delivered since Crawford famously overruled Ohio v. Roberts, 448 U.S. 56 (1980). This paper first outlines how the Supreme Court's recent post-Crawford line of decisions regarding “testimonial” evidence effectively returns us to Roberts — or perhaps to an even more narrow conception of confrontation rights than under Roberts. The paper next explains how confrontation rights could have been understood consistent with our modern adversary system of criminal trials, the direction in which I believed Crawford might take us when it overruled Roberts eight years ago. The paper concludes that if the Supreme Court was not prepared to deliver confrontation law to an important and new constitutional principle through Crawford’s wholesale revision of existing doctrine, the Court perhaps better should have heeded Chief Justice Rehnquist’s call in Crawford for restraint.

Keywords: Confrontation, Sixth Amendment, Crawford

Suggested Citation

Holland, Brooks, Crawford & Beyond: How Far Have We Traveled from Roberts after All? (June 13, 2012). Brooklyn Journal of Law and Policy, Vol. 20, No. 517, 2012; Gonzaga University School of Law Research Paper No. 2012-16. Available at SSRN: https://ssrn.com/abstract=2083836

Brooks Holland (Contact Author)

Gonzaga University School of Law ( email )

721 N. Cincinnati Street
Spokane, WA 99220-3528

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