Common Law Confrontations
Law and History Review, Forthcoming
34 Pages Posted: 6 Jun 2019
Date Written: May 14, 2019
Through the 2004 case of Crawford v. Washington and subsequent decisions, the U.S. Supreme Court transformed its account of the requirements of the Confrontation Clause of the Sixth Amendment of the Constitution. In doing so, the Supreme Court employed originalist methods and relied heavily on its assumptions about the Constitution’s common law backdrop. The Court and scholars defending its historical account claim, in particular, that, by the time of ratification of the Bill of Rights, any earlier exceptions to confrontation within common law practice had been eliminated unless a defendant enjoyed the opportunity to cross-examine the witnesses during a pretrial proceeding.
The Court’s story neglects the possibility that the Confrontation Clause might protect values apart from cross-examination and, furthermore, relies almost exclusively on British rather than American eighteenth-century practice. This symposium essay examines archival records of pretrial proceedings in colonial New Jersey as well as the sessions of the Court of Oyer and Terminer in order to reconstruct colonial criminal practice in at least one jurisdiction. These historical materials contain many pretrial examinations lacking any indications of cross-examination. They also suggest that depositions taken before trial may have been used in court in various instances when the witnesses failed to appear. The essay thereby calls into question the Court’s assumptions about eighteenth-century common law and its resulting interpretation of the Confrontation Clause.
Keywords: Originalism, Criminal Procedure, Confrontation Clause, Common Law, Colonial Legal History
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