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The Confrontation Clause Re-Rooted and Transformed

31 Pages Posted: 21 Sep 2004  

Richard D. Friedman

University of Michigan Law School

Abstract

This article discusses the transformation effected by Crawford v. Washington, 124 S.Ct. 1354 (2004), in the law governing the Confrontation Clause of the Sixth Amendment to the Constitution. Before Crawford, the Clause was deemed to apply broadly to all hearsay by out-of-court declarants, but subject to a general principle that it did not preclude the admission of reliable hearsay, with the qualification that in some undefined set of circumstances the hearsay could not be admitted if the declarant was available to testify at trial. This doctrine was unsatisfactory on various grounds, and it did not reflect the fundamental nature of the Clause: The Clause provides a categorical rule that a statement of a testimonial nature may not be introduced against a criminal defendant unless the defendant has had an adequate opportunity to cross-examine the witness; ordinarily that opportunity occurs at trial, but if the witness is unavailable to testify there a prior statement made subject to cross-examination may be acceptable. This is essentially the doctrine adopted by Crawford. The article reviews various respects in which Crawford does not change the law, and then addresses the changes that it does make and the questions that it leaves open. Most important of these is the question of when a statement is testimonial. The article argues that a statement is testimonial if it was made in circumstances in which a reasonable person would anticipate that it would have evidentiary use, whether or not it was made directly to a governmental official or in response to interrogation.

Keywords: confrontation, hearsay, witnesses, testimony, Crawford v. Washington

JEL Classification: K14, K41

Suggested Citation

Friedman, Richard D., The Confrontation Clause Re-Rooted and Transformed. Cato Supreme Court Review, Vol. 2003-2004, p. 439, 2004. Available at SSRN: https://ssrn.com/abstract=593362

Richard D. Friedman (Contact Author)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States
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