Confrontation After Scalia and Kennedy
29 Pages Posted: 17 May 2019 Last revised: 20 May 2019
Date Written: 2019
This symposium essay discusses the recent history and current state of the Confrontation Clause and then explores its possible futures. Justice Scalia’s 2004 opinion in Crawford v. Washington transformed confrontation doctrine and consequently rendered many types of hearsay statements potentially inadmissible in criminal cases. Although Crawford strengthened the right to confrontation in several respects, the subsequent decade produced significant backlash and disagreements—including dissenting opinions from Justice Kennedy—as the Court attempted to implement and develop confrontation doctrine. The fault lines that emerged among the Justices have left the current state of confrontation doctrine in disarray, particularly in cases involving expert witnesses. The replacement of Justices Scalia and Kennedy (Crawford’s champion and one of the principal dissenters in subsequent cases, respectively) with Justices Gorsuch and Kavanaugh has added to the uncertainty surrounding the doctrine’s future. This essay examines the possible pathways by which the doctrine on the Confrontation Clause may develop, distinguishing between cases involving experts and non-expert witnesses.
Keywords: confrontation clause, sixth amendment, Crawford, hearsay, testimony, experts
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