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1
-
-
45149085390
-
-
People v. Cage, 15 Cal. Rptr. 3d 846, 854 (Ct. App. 2004) (calling Crawford v. Washington a bombshell); State v. Hale, 691 N.W.2d 637, 646 (Wis. 2005) (With the Crawford decision, a new day has dawned for Confrontation Clause jurisprudence. [The defendant] is the beneficiary of this renaissance . . . .); see also State v. Alvarez-Lopez, 98 P.3d 699, 707 (N.M. 2004) (stating that the courts now view the Confrontation Clause through a newly shaped lens).
-
People v. Cage, 15 Cal. Rptr. 3d 846, 854 (Ct. App. 2004) (calling Crawford v. Washington a "bombshell"); State v. Hale, 691 N.W.2d 637, 646 (Wis. 2005) ("With the Crawford decision, a new day has dawned for Confrontation Clause jurisprudence. [The defendant] is the beneficiary of this renaissance . . . ."); see also State v. Alvarez-Lopez, 98 P.3d 699, 707 (N.M. 2004) (stating that the courts now view the Confrontation Clause through "a newly shaped lens").
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2
-
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45149126292
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See Kevin Drew, At 33, He's a Two-Time Supreme Court Winner: Seattle Attorney Establishes New Legal Ground with Cases, CNN, July 23, 2004, http://www.cnn.com/2004/LAW/07/21/seattle.attorney (profiling Jeffrey L. Fisher, who argued Crawford believing he was requesting a dramatic change in the law, asking for a whole new system).
-
See Kevin Drew, At 33, He's a Two-Time Supreme Court Winner: Seattle Attorney Establishes New Legal Ground with Cases, CNN, July 23, 2004, http://www.cnn.com/2004/LAW/07/21/seattle.attorney (profiling Jeffrey L. Fisher, who argued Crawford believing he was requesting "a dramatic change in the law, asking for a whole new system").
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3
-
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45149103139
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541 U.S. 36 2004
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541 U.S. 36 (2004).
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5
-
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45149122157
-
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Whorton v. Bockting, 127 S. Ct. 1173 (2007) (holding that Crawford was not retroactive); Davis v. Washington, 126 S. Ct. 2266 (2006) (determining the circumstances in which a 911 call is testimonial and therefore subject to the Confrontation Clause).
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Whorton v. Bockting, 127 S. Ct. 1173 (2007) (holding that Crawford was not retroactive); Davis v. Washington, 126 S. Ct. 2266 (2006) (determining the circumstances in which a 911 call is "testimonial" and therefore subject to the Confrontation Clause).
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6
-
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0346934188
-
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Richard D. Friedman has noted that in the 1960s, when the Court applied the Confrontation Clause to state prosecutions, it became more important for the Court to develop a doctrine as to how to treat such hearsay statements. This is because at that time, in federal prosecutions, a statement that was inadmissible via the Confrontation Clause could also be excluded by bringing it within the rule against hearsay. Richard D. Friedman, Confrontation: The Search for Basic Principles, 86 GEO. L.J. 1011, 1014 (1998).
-
Richard D. Friedman has noted that in the 1960s, when the Court applied the Confrontation Clause to state prosecutions, it became more important for the Court to develop a doctrine as to how to treat such hearsay statements. This is because at that time, in federal prosecutions, a statement that was inadmissible "via the Confrontation Clause could also be excluded by bringing it within the rule against hearsay." Richard D. Friedman, Confrontation: The Search for Basic Principles, 86 GEO. L.J. 1011, 1014 (1998).
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7
-
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45149117833
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448 U.S. 56 (1980), overruled in part by Crawford, 541 U.S. at 68.
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448 U.S. 56 (1980), overruled in part by Crawford, 541 U.S. at 68.
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8
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45149119022
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Id. at 66
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Id. at 66.
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9
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45149095241
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Crawford, 541 U.S. at 53-54.
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Crawford, 541 U.S. at 53-54.
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10
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45149114692
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Id. at 54
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Id. at 54.
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-
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11
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45149084872
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Crawford's implementation, see generally Jerome C. Latimer, Confrontation After Crawford: The Decision's Impact on How Hearsay Is Analyzed Under the Confrontation Clause, 36
-
For background and a survey of
-
For background and a survey of Crawford's implementation, see generally Jerome C. Latimer, Confrontation After Crawford: The Decision's Impact on How Hearsay Is Analyzed Under the Confrontation Clause, 36 SETON HALL L. REV. 327 (2006).
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(2006)
SETON HALL L. REV
, vol.327
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-
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12
-
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32044447726
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Originalism and Formalism in Criminal Procedure: The Triumph of Justice Scalia, the Unlikely Friend of Criminal Defendants?, 94
-
Particularly interesting commentary can be found in
-
Particularly interesting commentary can be found in Stephanos Bibas, Originalism and Formalism in Criminal Procedure: The Triumph of Justice Scalia, the Unlikely Friend of Criminal Defendants?, 94 GEO. L.J. 183 (2005);
-
(2005)
GEO. L.J
, vol.183
-
-
Bibas, S.1
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13
-
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45149100852
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Robert M. Pitler, Crawford and Beyond: Exploring the Future of the Confrontation Clause in Light of Its Past, 71 BROOK. L. REV. 1 (2005);
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Robert M. Pitler, Crawford and Beyond: Exploring the Future of the Confrontation Clause in Light of Its Past, 71 BROOK. L. REV. 1 (2005);
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-
-
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14
-
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45149125761
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Pipe-Dreams of Truth and Fairness: Is Crawford v. Washington a Breakthrough for Sixth Amendment Confrontation Rights?, 9 BUFF
-
Much of the commentary has focused on the definition of testimonial
-
Susanne C. Walther, Pipe-Dreams of Truth and Fairness: Is Crawford v. Washington a Breakthrough for Sixth Amendment Confrontation Rights?, 9 BUFF. CRIM. L. REV. 453 (2006). Much of the commentary has focused on the definition of "testimonial."
-
(2006)
CRIM. L. REV
, vol.453
-
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Walther, S.C.1
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15
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45149119021
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See, e.g., Mark Dwyer, Crawford's Testimonial Hearsay Category: A Plain Limit on the Protections of the Confrontation Clause, 71 BROOK. L. REV. 275 (2005) (providing a practioner's perspective);
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See, e.g., Mark Dwyer, Crawford's "Testimonial Hearsay" Category: A Plain Limit on the Protections of the Confrontation Clause, 71 BROOK. L. REV. 275 (2005) (providing a practioner's perspective);
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16
-
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28444495469
-
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Bradley Morin, Science, Crawford and Testimonial Hearsay: Applying the Confrontation Clause to Laboratory Reports, 85 B.U. L. REV. 1243 (2005);
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Bradley Morin, Science, Crawford and Testimonial Hearsay: Applying the Confrontation Clause to Laboratory Reports, 85 B.U. L. REV. 1243 (2005);
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-
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17
-
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45149088368
-
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John M. Spires, Note, Testimonial or Nontestimonial? The Admissibility of Forensic Evidence After Crawford v. Washington, 94 KY. L.J. 187 (2005-2006). The most succinct of such articles exploring this definition is Richard D. Friedman, Grappling with the Meaning of Testimonial, 71 BROOK. L. REV. 241 (2005).
-
John M. Spires, Note, Testimonial or Nontestimonial? The Admissibility of Forensic Evidence After Crawford v. Washington, 94 KY. L.J. 187 (2005-2006). The most succinct of such articles exploring this definition is Richard D. Friedman, Grappling with the Meaning of "Testimonial, " 71 BROOK. L. REV. 241 (2005).
-
-
-
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18
-
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45149108452
-
-
See Davis v. Washington, 126 S. Ct. 2266 (2006, This opinion stemmed from two lower court cases, one in Washington, State v. Davis, 111 P.3d 844 (Wash. 2005, aff'd, 126 S. Ct. 2266, and one in Indiana, Hammon v. State, 809 N.E.2d 945 (Ind. Ct. App. 2004, rev'd sub nom. Davis, 126 S. Ct. 2266. In the Washington case, the question presented was when an emergency 911 call could be properly classified as testimonial. Davis, 111 P.3d at 846. In the Indiana case, the question was when police's questioning of a domestic violence victim, shortly after arriving on a scene, qualified as a testimonial statement. Hammon, 809 N.E.2d at 947. The Supreme Court recently granted certiorari in a case that may add further clarity to the definition of the word testimonial. Commonwealth v. Melendez-Diaz, 870 N.E.2d 676 (Mass. App. Ct. 2007, review denied 874 N.E.2d 407 (Mass. 2007, cert. granted 2008 WL 695627 U.S. Mar. 17, 20
-
See Davis v. Washington, 126 S. Ct. 2266 (2006). This opinion stemmed from two lower court cases, one in Washington, State v. Davis, 111 P.3d 844 (Wash. 2005), aff'd, 126 S. Ct. 2266, and one in Indiana, Hammon v. State, 809 N.E.2d 945 (Ind. Ct. App. 2004), rev'd sub nom. Davis, 126 S. Ct. 2266. In the Washington case, the question presented was when an emergency 911 call could be properly classified as testimonial. Davis, 111 P.3d at 846. In the Indiana case, the question was when police's questioning of a domestic violence victim, shortly after arriving on a scene, qualified as a testimonial statement. Hammon, 809 N.E.2d at 947. The Supreme Court recently granted certiorari in a case that may add further clarity to the definition of the word "testimonial." Commonwealth v. Melendez-Diaz, 870 N.E.2d 676 (Mass. App. Ct. 2007), review denied 874 N.E.2d 407 (Mass. 2007), cert. granted 2008 WL 695627 (U.S. Mar. 17, 2008). At issue is whether crime-laboratory reports are testimonial.
-
-
-
-
19
-
-
33646010920
-
-
An exception is a piece by Miguel A. Méndez in which he identifies this issue and discusses it briefly. Miguel A. Méndez, Crawford v. Washington: A Critique, 57 STAN. L. REV. 569, 608 2004, Of critical importance is the question whether the Confrontation Clause embraces nontestimonial statements
-
An exception is a piece by Miguel A. Méndez in which he identifies this issue and discusses it briefly. Miguel A. Méndez, Crawford v. Washington: A Critique, 57 STAN. L. REV. 569, 608 (2004) ("Of critical importance is the question whether the Confrontation Clause embraces nontestimonial statements.").
-
-
-
-
20
-
-
45149128491
-
-
See State v. Manuel, 697 N.W.2d 811, 826 n. 15 (Wis. 2005, O]nly one reported case, a trial court decision, has construed Crawford as exempting nontestimonial hearsay from Confrontation Clause analysis altogether. However, that conclusion seemed to rest on a misquotation of Crawford, see also Summers v. Dretke, 431 F.3d 861, 877 (5th Cir. 2005, finding that it is clear that [Roberts] continues to control with respect to nontestimonial statements by accomplices, United States v. Hinton, 423 F.3d 355, 358 n.1 (3d Cir. 2005, holding that non-testimonial hearsay is still governed by Roberts, United States v. Brun, 416 F.3d 703, 707 (8th Cir. 2005, applying Roberts to a nontestimonial excited utterance, United States v. Gibson, 409 F.3d 325, 338 6th Cir. 2005, But Crawford dealt only with testimonial statements and did not disturb the rule that nontestimonial statements are constitu
-
See State v. Manuel, 697 N.W.2d 811, 826 n. 15 (Wis. 2005) ("[O]nly one reported case, a trial court decision, has construed Crawford as exempting nontestimonial hearsay from Confrontation Clause analysis altogether. However, that conclusion seemed to rest on a misquotation of Crawford."); see also Summers v. Dretke, 431 F.3d 861, 877 (5th Cir. 2005) (finding that "it is clear that [Roberts] continues to control" with respect to nontestimonial statements by accomplices); United States v. Hinton, 423 F.3d 355, 358 n.1 (3d Cir. 2005) (holding that "non-testimonial hearsay is still governed by Roberts"); United States v. Brun, 416 F.3d 703, 707 (8th Cir. 2005) (applying Roberts to a nontestimonial excited utterance); United States v. Gibson, 409 F.3d 325, 338 (6th Cir. 2005) ("But Crawford dealt only with testimonial statements and did not disturb the rule that nontestimonial statements are constitutionally admissible if they bear independent guarantees of trustworthiness."); Mungo v. Duncan, 393 F.3d 327, 336 n.7 (2d Cir. 2004) (stating that "under Roberts, nontestimonial hearsay deemed unreliable is barred by the Confrontation Clause"); Horton v. Allen, 370 F.3d 75, 84 (1st Cir. 2004) ("Accordingly, we apply Roberts to determine whether the admission of [a witness' nontestimonial] statements violated [the defendant's] Confrontation Clause rights.").
-
-
-
-
21
-
-
45149117917
-
-
See, e.g., Compan v. People, 121 P.3d 876 (Colo. 2005) (Coats, J., concurring) (noting that Crawford leveled several criticisms at the Roberts approach that would apply with equal force to its application to nontestimonial statements). Consider the Crawford Court's claim that [r]eliability is an amorphous, if not entirely subjective, concept. 541 U.S. at 63.
-
See, e.g., Compan v. People, 121 P.3d 876 (Colo. 2005) (Coats, J., concurring) (noting that Crawford leveled several criticisms at the Roberts approach that would apply with equal force to its application to nontestimonial statements). Consider the Crawford Court's claim that "[r]eliability is an amorphous, if not entirely subjective, concept." 541 U.S. at 63.
-
-
-
-
22
-
-
45149112087
-
-
See, e.g., United States v. Saget, 377 F.3d 223, 227 (2d Cir. 2004) ([T]he continued viability of Roberts with respect to nontestimonial statements is somewhat in doubt . . . .); State v. Dedman, 102 P.3d 628, 637 (N.M. 2004) ([T]he [Supreme] Court may later conclude that the Sixth Amendment is not concerned with non-testimonial hearsay.).
-
See, e.g., United States v. Saget, 377 F.3d 223, 227 (2d Cir. 2004) ("[T]he continued viability of Roberts with respect to nontestimonial statements is somewhat in doubt . . . ."); State v. Dedman, 102 P.3d 628, 637 (N.M. 2004) ("[T]he [Supreme] Court may later conclude that the Sixth Amendment is not concerned with non-testimonial hearsay.").
-
-
-
-
23
-
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45149117558
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Crawford, 541 U.S. at 53.
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Crawford, 541 U.S. at 53.
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-
-
-
24
-
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45149106235
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Davis, 126 S. Ct. at 2274.
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Davis, 126 S. Ct. at 2274.
-
-
-
-
25
-
-
45149096992
-
-
State v. Legendre, 942 So.2d 45, 51 (La. Ct. App. 2006) (acknowledging Davis, but concluding nonetheless that [a]s to 'non-testimonial' statements, the Roberts reliability analysis still applies); State v. Jensen, 727 N.W.2d 518, 524 (Wis. 2007) (The Roberts test remains when nontestimonial statements are at issue.).
-
State v. Legendre, 942 So.2d 45, 51 (La. Ct. App. 2006) (acknowledging Davis, but concluding nonetheless that "[a]s to 'non-testimonial' statements, the Roberts reliability analysis still applies"); State v. Jensen, 727 N.W.2d 518, 524 (Wis. 2007) ("The Roberts test remains when nontestimonial statements are at issue.").
-
-
-
-
26
-
-
45149123529
-
-
127 S. Ct. 1173, 1183 (2007).
-
127 S. Ct. 1173, 1183 (2007).
-
-
-
-
27
-
-
45149088956
-
-
See generally Laird C. Kirkpatrick, Nontestimonial Hearsay After Crawford, Davis and Bockting, 19 REGENT U. L. REV. 367 (2007).
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See generally Laird C. Kirkpatrick, Nontestimonial Hearsay After Crawford, Davis and Bockting, 19 REGENT U. L. REV. 367 (2007).
-
-
-
-
28
-
-
84888467546
-
-
note 99 and accompanying text
-
See infra note 99 and accompanying text.
-
See infra
-
-
-
29
-
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45149098105
-
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541 U.S. at 68
-
541 U.S. at 68.
-
-
-
-
30
-
-
45149094155
-
-
See, e.g, United States v. Johnson, 440 F.3d 832, 843 (6th Cir. 2006, holding that conversations between friends of twenty-five years were nontestimonial, McKinney v. Bruce, 125 F. App'x 947, 950 (10th Cir. 2005, holding that the victim's statements to his uncle were nontestimonial, Horton v. Allen, 370 F.3d 75, 84 (1st Cir. 2004, finding that statements made during a private conversation to a friend were not testimonial, People v. Griffin, 93 P.3d 344, 372 n.19 (Cal. 2004, holding that a statement to a friend at school that defendant had fondled her was nontestimonial hearsay within the meaning of Crawford, Demons v. State, 595 S.E.2d 76, 80 (Ga. 2004, holding conversations between close friends were not testimonial, State v. Blue, 717 N.W.2d 558, 563 N.D. 2006, A]n out-of-court statement by a victim to a friend, family member, coworker, or non-government employee, without police involvement, have [sic] been held nontestimonial
-
See, e.g., United States v. Johnson, 440 F.3d 832, 843 (6th Cir. 2006) (holding that conversations between friends of twenty-five years were nontestimonial); McKinney v. Bruce, 125 F. App'x 947, 950 (10th Cir. 2005) (holding that the victim's statements to his uncle were nontestimonial); Horton v. Allen, 370 F.3d 75, 84 (1st Cir. 2004) (finding that statements made during a private conversation to a friend were not testimonial); People v. Griffin, 93 P.3d 344, 372 n.19 (Cal. 2004) (holding that a statement to a friend at school that defendant had fondled her was nontestimonial hearsay within the meaning of Crawford); Demons v. State, 595 S.E.2d 76, 80 (Ga. 2004) (holding conversations between close friends were not testimonial); State v. Blue, 717 N.W.2d 558, 563 (N.D. 2006) ("[A]n out-of-court statement by a victim to a friend, family member, coworker, or non-government employee, without police involvement, have [sic] been held nontestimonial.").
-
-
-
-
31
-
-
45149103908
-
-
1 Leach 199, 200, 168 Eng. Rep. 202 (K.B.).
-
(1779) 1 Leach 199, 200, 168 Eng. Rep. 202 (K.B.).
-
-
-
-
32
-
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45149103645
-
-
Crawford, 541 U.S. at 69-70 (Rehnquist, C.J., concurring in part, dissenting in part). Brasier was also cited in the most recent case interpreting the Confrontation Clause. See Davis v. Washington, 126 S. Ct. 2266, 2277 (2006).
-
Crawford, 541 U.S. at 69-70 (Rehnquist, C.J., concurring in part, dissenting in part). Brasier was also cited in the most recent case interpreting the Confrontation Clause. See Davis v. Washington, 126 S. Ct. 2266, 2277 (2006).
-
-
-
-
33
-
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45149113471
-
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168 Eng. Rep. at 202
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168 Eng. Rep. at 202.
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-
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34
-
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45149099475
-
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Id
-
Id.
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35
-
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45149094687
-
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Id
-
Id.
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36
-
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45149117286
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Id. at 203
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Id. at 203.
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38
-
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45149098106
-
-
Crawford, 541 U.S. at 59 (The Clause also does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.). When a party introduces out-of-court statements for purposes other than proving the truth of the matter asserted, the federal rules permit limiting instructions prohibiting the jury from considering such statements for their truth. FED. R. EVID. 105.
-
Crawford, 541 U.S. at 59 ("The Clause also does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted."). When a party introduces out-of-court statements for purposes other than proving the truth of the matter asserted, the federal rules permit limiting instructions prohibiting the jury from considering such statements for their truth. FED. R. EVID. 105.
-
-
-
-
39
-
-
45149104184
-
-
For those citing Brasier in the Confrontation Clause context, see Crawford, 541 U.S. at 69-70 (Rehnquist, C.J., concurring in part, dissenting in part); State v. Mizenko, 127 P.3d 458, 481 (Mont. 2006); State v. Gambutti, 115 A.2d 136, 138 (N.J. Super. Ct. App. Div. 1955). But see Gaines v. Commonwealth, 728 S.W.2d 525, 527 (Ky. 1987) (citing Brasier in determining a child's competence to testify).
-
For those citing Brasier in the Confrontation Clause context, see Crawford, 541 U.S. at 69-70 (Rehnquist, C.J., concurring in part, dissenting in part); State v. Mizenko, 127 P.3d 458, 481 (Mont. 2006); State v. Gambutti, 115 A.2d 136, 138 (N.J. Super. Ct. App. Div. 1955). But see Gaines v. Commonwealth, 728 S.W.2d 525, 527 (Ky. 1987) (citing Brasier in determining a child's competence to testify).
-
-
-
-
40
-
-
45149108728
-
-
Jeffrey L. Fisher, What Happened - and What Is Happening - to the Confrontation Clause?, 15 J.L. & POL'Y 587 (2007);
-
Jeffrey L. Fisher, What Happened - and What Is Happening - to the Confrontation Clause?, 15 J.L. & POL'Y 587 (2007);
-
-
-
-
41
-
-
45149109005
-
-
Richard D. Friedman, Crawford, Davis, and Way Beyond, 15 J.L. & POL'Y 553, 556 (2007). Friedman argued Hammon v. Indiana, the companion case to Davis v. Washington, 126 S. Ct. 2266 (2006).
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Richard D. Friedman, Crawford, Davis, and Way Beyond, 15 J.L. & POL'Y 553, 556 (2007). Friedman argued Hammon v. Indiana, the companion case to Davis v. Washington, 126 S. Ct. 2266 (2006).
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-
-
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42
-
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45149133189
-
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See Richard D. Friedman, Crawford and Davis: A Personal Reflection, 19 REGENT U. L. REV. 303, 303 (2007).
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See Richard D. Friedman, Crawford and Davis: A Personal Reflection, 19 REGENT U. L. REV. 303, 303 (2007).
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-
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43
-
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45149092281
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Fisher, supra note 34, at 624
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Fisher, supra note 34, at 624.
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-
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44
-
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45149121306
-
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541 U.S. at 52 (2004) (Regardless of the precise articulation, some statements qualify under any definition-for example, ex parte testimony at a preliminary hearing. Statements taken by police officers in the course of interrogations are also testimonial under even a narrow standard.).
-
541 U.S. at 52 (2004) ("Regardless of the precise articulation, some statements qualify under any definition-for example, ex parte testimony at a preliminary hearing. Statements taken by police officers in the course of interrogations are also testimonial under even a narrow standard.").
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-
-
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45
-
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45149122701
-
-
To be sure, Fisher's proposal does raise its own set of questions. At what point does a remark become a narrative? Is the term authority objective or subjective? That is, does it matter whether a person has actual authority over the declarant, or is it sufficient that the speaker reasonably (or even unreasonably) believes the person has such authority? But these seem like judicially manageable questions.
-
To be sure, Fisher's proposal does raise its own set of questions. At what point does a remark become a narrative? Is the term "authority" objective or subjective? That is, does it matter whether a person has actual authority over the declarant, or is it sufficient that the speaker reasonably (or even unreasonably) believes the person has such authority? But these seem like judicially manageable questions.
-
-
-
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46
-
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45149089526
-
-
See, e.g, Compan v. People, 121 P.3d 876, 880-81 (Colo. 2005, ruling that an abuse victim's statements to a friend were nontestimonial, Herrera-Vega v. State, 888 So. 2d 66, 69 (Fla. Dist. Ct. App. 2004, holding that a child's spontaneous statements to her mother and father that she was sodomized were nontestimonial, see also People v. Sharp, 825 N.E.2d 706, 717 (Ill. App. Ct. 2005, Turner, J, concurring, Here, Lydia questioned the child as a concerned and loving parent. Lydia desired to determine if her child had been sexually abused, and she questioned [the child] to determine the veracity of her suspicions. Lydia's questions and [the child's] responses were not prompted by police officers or any other governmental authority, and I conclude the responses elicited were thus nontestimonial in nature, cf. People v. Geno, 683 N.W.2d 687, 692 Mich. Ct. App. 2004, holding that a statement made by child to a non-government employee of the Childre
-
See, e.g., Compan v. People, 121 P.3d 876, 880-81 (Colo. 2005) (ruling that an abuse victim's statements to a friend were nontestimonial); Herrera-Vega v. State, 888 So. 2d 66, 69 (Fla. Dist. Ct. App. 2004) (holding that a child's spontaneous statements to her mother and father that she was sodomized were nontestimonial); see also People v. Sharp, 825 N.E.2d 706, 717 (Ill. App. Ct. 2005) (Turner, J., concurring) ("Here, Lydia questioned the child as a concerned and loving parent. Lydia desired to determine if her child had been sexually abused, and she questioned [the child] to determine the veracity of her suspicions. Lydia's questions and [the child's] responses were not prompted by police officers or any other governmental authority, and I conclude the responses elicited were thus nontestimonial in nature."); cf. People v. Geno, 683 N.W.2d 687, 692 (Mich. Ct. App. 2004) (holding that a statement made by child to a non-government employee of the Children's Assessment Center was not testimonial).
-
-
-
-
47
-
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45149130527
-
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See, e.g., State v. Mechling, 633 S.E.2d 311 (W. Va. 2006) (reversing a lower court's finding that a domestic violence victim's statements to a neighbor were nontestimonial and remanding to ensure that forfeiture doctrine did not compel the admission of the statements in any event).
-
See, e.g., State v. Mechling, 633 S.E.2d 311 (W. Va. 2006) (reversing a lower court's finding that a domestic violence victim's statements to a neighbor were nontestimonial and remanding to ensure that forfeiture doctrine did not compel the admission of the statements in any event).
-
-
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48
-
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45149134932
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Crawford, 541 U.S. at 51.
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Crawford, 541 U.S. at 51.
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49
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45149130521
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Id. at 53
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Id. at 53.
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50
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45149087870
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Friedman, supra note 34
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Friedman, supra note 34.
-
-
-
-
51
-
-
45149108173
-
-
Id. at 556
-
Id. at 556.
-
-
-
-
52
-
-
45149091998
-
-
25 F. Cas. 187 (C.C.D. Va. 1807) (No. 14,694).
-
25 F. Cas. 187 (C.C.D. Va. 1807) (No. 14,694).
-
-
-
-
53
-
-
45149132690
-
-
Id. 193
-
Id. 193.
-
-
-
-
54
-
-
45149090903
-
-
Id. at 194
-
Id. at 194.
-
-
-
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55
-
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45149103909
-
-
Id. at 193
-
Id. at 193.
-
-
-
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56
-
-
45149125507
-
-
Id
-
Id.
-
-
-
-
57
-
-
45149093618
-
-
Id
-
Id.
-
-
-
-
58
-
-
45149114693
-
-
Crawford, 541 U.S. 36, 59 n.9 (2004).
-
Crawford, 541 U.S. 36, 59 n.9 (2004).
-
-
-
-
59
-
-
45149110398
-
-
See, e.g., JEAN EDWARD SMITH, JOHN MARSHALL: DEFINER OF A NATION 11 (1996) (discussing Marshall's personal friendships with James Madison, James Monroe, and Patrick Henry).
-
See, e.g., JEAN EDWARD SMITH, JOHN MARSHALL: DEFINER OF A NATION 11 (1996) (discussing Marshall's personal friendships with James Madison, James Monroe, and Patrick Henry).
-
-
-
-
60
-
-
45149104185
-
-
Frank R. Herrmann, S.J., & Brownlow M. Speer, Facing the Accuser: Ancient and Medieval Precursors of the Confrontation Clause, 34 VA. J. INT'L L. 481, 482 (1994) (noting that [conventional wisdom marks Raleigh's [trial] as the starting point of the history of the Sixth Amendment's Confrontation Clause and pointing out the tension between this claim and the Supreme Court's claims that the Confrontation Clause's roots date back to antiquity).
-
Frank R. Herrmann, S.J., & Brownlow M. Speer, Facing the Accuser: Ancient and Medieval Precursors of the Confrontation Clause, 34 VA. J. INT'L L. 481, 482 (1994) (noting that "[conventional wisdom marks Raleigh's [trial] as the starting point of the history of the Sixth Amendment's Confrontation Clause" and pointing out the tension between this claim and the Supreme Court's claims that the Confrontation Clause's roots date back to antiquity).
-
-
-
-
61
-
-
45149135204
-
-
Id
-
Id.
-
-
-
-
62
-
-
45149103647
-
-
541 U.S. at 43
-
541 U.S. at 43.
-
-
-
-
63
-
-
45149086785
-
-
The Court's prior acknowledgment of the ancient roots of the Clause appear in Coy v. Iowa, 487 U.S. 1012, 1015-16 (1988), where the Court cited the Biblical Book of Acts's admonition that [i]t is not the manner of the Romans to deliver any man up to die, before the accused has met his accusers face to face, and has been given a chance to defend himself against the charges. For a discussion of the selective originalism in Crawford, see Thomas Y. Davies, What Did the Framers Know and When Did They Know It? Fictional Originalism in Crawford v. Washington, 71 BROOK. L. REV. 105 (2005).
-
The Court's prior acknowledgment of the ancient roots of the Clause appear in Coy v. Iowa, 487 U.S. 1012, 1015-16 (1988), where the Court cited the Biblical Book of Acts's admonition that "[i]t is not the manner of the Romans to deliver any man up to die, before the accused has met his accusers face to face, and has been given a chance to defend himself against the charges." For a discussion of the selective originalism in Crawford, see Thomas Y. Davies, What Did the Framers Know and When Did They Know It? Fictional Originalism in Crawford v. Washington, 71 BROOK. L. REV. 105 (2005).
-
-
-
-
64
-
-
45149119019
-
-
More recently, in Thomas Y. Davies, Not the Framers' Design: How the Framing-Era Ban Against Hearsay Evidence Refutes the Crawford-Davis Testimonial Formulation of the Scope of the Original Confrontation Clause, 15 J.L. & POL'Y 349 2007, Davies argues that the framing-era authorities do not indicate that the Framers would have distinguished between the general ban against hearsay and the confrontation right; rather, the sources indicate that the ban against hearsay evidence was understood to be a salient feature of the confrontation right. Id. at 383. Still, this analysis assumes that the history of the Confrontation Clause and the history of hearsay law are severable. More directly relevant for the purposes of this Note, Davies argues that Framing-era documents, including Brasier, support the view that the Supreme Court's recent distinction between testimonial and nontestimonial hearsay is not suppor
-
More recently, in Thomas Y. Davies, Not the "Framers' Design": How the Framing-Era Ban Against Hearsay Evidence Refutes the Crawford-Davis "Testimonial" Formulation of the Scope of the Original Confrontation Clause, 15 J.L. & POL'Y 349 (2007), Davies argues that "the framing-era authorities do not indicate that the Framers would have distinguished between the general ban against hearsay and the confrontation right; rather, the sources indicate that the ban against hearsay evidence was understood to be a salient feature of the confrontation right." Id. at 383. Still, this analysis assumes that the history of the Confrontation Clause and the history of hearsay law are severable. More directly relevant for the purposes of this Note, Davies argues that Framing-era documents, including Brasier, support the view that the Supreme Court's recent distinction between testimonial and nontestimonial hearsay is not supported by history. He notes that in justice of the peace manuals, there was a complete ban against out-of-court statements against criminal defendants from available witnesses: "'[N]o evidence is to be given against a prisoner but in his presence.'" Id. at 394-95 & n.110 (quoting 2 WILLIAM HAWKINS, PLEAS OF THE CROWN (1721)). Furthermore, there was a general prohibition against using unsworn statements against criminal defendants. Id. at 396. Davies's reading, though, in some ways echoes the positions put forth by the concurring opinion in Crawford, arguments that the majority rejected. 541 U.S. at 52 n.3 ("[S]ources-especially Raleigh's trial-refute the Chief Justice's assertion, that the right of confrontation was not particularly concerned with unsworn testimonial statements." (citation omitted)).
-
-
-
-
65
-
-
45149112945
-
-
This story has been omitted from the Bible as apocrypha
-
Susanna 1:164. This story has been omitted from the Bible as apocrypha.
-
Susanna
, vol.1
, pp. 164
-
-
-
66
-
-
45149113473
-
-
JAMES A. HUGHES, WITNESSES IN CRIMINAL TRIALS OF CLERICS 16-17 (1937), as cited in Herrmann & Spear, supra note 52, at 517. Liberal reforms included allowing both parties in a proceeding to submit questions to the judge to ask the witnesses, and to have the witnesses' answers to the questions publicly announced.
-
JAMES A. HUGHES, WITNESSES IN CRIMINAL TRIALS OF CLERICS 16-17 (1937), as cited in Herrmann & Spear, supra note 52, at 517. Liberal reforms included allowing both parties in a proceeding to submit questions to the judge to ask the witnesses, and to have the witnesses' answers to the questions publicly announced.
-
-
-
-
67
-
-
45149104880
-
-
Id
-
Id.
-
-
-
-
68
-
-
45149100043
-
-
Susanna 1:51 (Daniel said to them, 'Separate these men and keep them at a distance from each other, and I will examine them.').
-
Susanna 1:51 ("Daniel said to them, 'Separate these men and keep them at a distance from each other, and I will examine them.'").
-
-
-
-
69
-
-
45149084345
-
-
Id. at 1:52-59 (revealing that the witnesses diverged as to what type of tree under which they saw Susanna fornicating).
-
Id. at 1:52-59 (revealing that the witnesses diverged as to what type of tree under which they saw Susanna fornicating).
-
-
-
-
70
-
-
45149083207
-
-
This, of course, invites the same critique that could be launched at my use of King v. Braser; that is, the example illustrates why a broader definition of testimonial that courts currently accept might be warranted. See Fisher, supra note 34. This example is different, though, because these statements would be nontestimonial even under the standard Fisher proposes. Fisher's proposal would render statements testimonial if the statements were narratives of completed events reported to a person (or persons) of authority. However, a servant, ipso facto, is not a person of authority.
-
This, of course, invites the same critique that could be launched at my use of King v. Braser; that is, the example illustrates why a broader definition of "testimonial" that courts currently accept might be warranted. See Fisher, supra note 34. This example is different, though, because these statements would be nontestimonial even under the standard Fisher proposes. Fisher's proposal would render statements testimonial if the statements were narratives of completed events reported to a person (or persons) of "authority." However, a servant, ipso facto, is not a person of authority.
-
-
-
-
71
-
-
45149096438
-
-
Crawford v. Washington, 541 U.S. 36, 51 (2004) ([N]ot all hearsay implicates the Sixth Amendment's core concerns.).
-
Crawford v. Washington, 541 U.S. 36, 51 (2004) ("[N]ot all hearsay implicates the Sixth Amendment's core concerns.").
-
-
-
-
72
-
-
45149088367
-
-
Manson v. Brathwaite, 432 U.S. 98, 114 (1977) (noting that on that particular due process question, reliability is the linchpin in determining the admissibility).
-
Manson v. Brathwaite, 432 U.S. 98, 114 (1977) (noting that on that particular due process question, "reliability is the linchpin in determining the admissibility").
-
-
-
-
73
-
-
45149112363
-
-
Friedman, supra note 6, at 1022 (The origins of the clause are famously obscure.).
-
Friedman, supra note 6, at 1022 ("The origins of the clause are famously obscure.").
-
-
-
-
74
-
-
45149096153
-
-
541 U.S. at 51; see also AKHIL REED AMAR, THE CONSTITUTION AND CRIMINAL PROCEDURE, 127-28 (1997) (putting forth a textual argument that is quite similar to the one the Crawford Court ultimately adopted, stating that the solution begins with taking the text seriously).
-
541 U.S. at 51; see also AKHIL REED AMAR, THE CONSTITUTION AND CRIMINAL PROCEDURE, 127-28 (1997) (putting forth a textual argument that is quite similar to the one the Crawford Court ultimately adopted, stating that the solution "begins with taking the text seriously").
-
-
-
-
75
-
-
45149088690
-
-
Crawford, 541 U.S. at 51 (citing N. WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (1828)).
-
Crawford, 541 U.S. at 51 (citing N. WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (1828)).
-
-
-
-
76
-
-
45149134800
-
-
Id
-
Id.
-
-
-
-
77
-
-
45149095240
-
-
Id
-
Id.
-
-
-
-
78
-
-
45149106236
-
-
Id. at 43 (citing 3 JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 1397, at 104); see also OXFORD ENGLISH DICTIONARY (2d ed. 1989) (defining witness, in part, as [t]he action or condition of being an observer of an event).
-
Id. at 43 (citing 3 JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 1397, at 104); see also OXFORD ENGLISH DICTIONARY (2d ed. 1989) (defining "witness," in part, as "[t]he action or condition of being an observer of an event").
-
-
-
-
79
-
-
33747058737
-
-
See Randolph N. Jonakait, Witnesses in the Confrontation Clause: Crawford v. Washington, Noah Webster, and Compulsory Process, 79 TEMP. L. REV. 155, 158 2006, Kirkpatrick, supra note 21, at 382
-
See Randolph N. Jonakait, "Witnesses" in the Confrontation Clause: Crawford v. Washington, Noah Webster, and Compulsory Process, 79 TEMP. L. REV. 155, 158 (2006); Kirkpatrick, supra note 21, at 382.
-
-
-
-
80
-
-
0347775987
-
-
Jane Schacter, The Confounding Common Law Originalism in Recent Supreme Court Statutory Interpretation: Implications for the Legislative History Debate and Beyond, 51 STAN. L. REV. 1, 10 (1998) (tracing, inter alia, the increased use of dictionaries by the Court: The dictionary was cited in 1% of the statutory cases in the 1981 Term, in 14% of the cases in the 1988 Term, and in fully 33% of the cases in the 1992 Term).
-
Jane Schacter, The Confounding Common Law Originalism in Recent Supreme Court Statutory Interpretation: Implications for the Legislative History Debate and Beyond, 51 STAN. L. REV. 1, 10 (1998) (tracing, inter alia, the increased use of dictionaries by the Court: "The dictionary was cited in 1% of the statutory cases in the 1981 Term, in 14% of the cases in the 1988 Term, and in fully 33% of the cases in the 1992 Term").
-
-
-
-
81
-
-
45149109270
-
-
Crawford, 541 U.S. at 42-43, 51.
-
Crawford, 541 U.S. at 42-43, 51.
-
-
-
-
82
-
-
45149097288
-
-
See, e.g., Kissam v. Burrall, 1 Kirby 326 (Conn. Super. Ct. 1787); Lindsay v. Lindsay, 1 S.C. Eq. (1 Des. Eq.) 150, 1 (1787) (referring to the weight of testimony given at a particular trial); Watlington v. Howley, 1 S.C. Eq. (1 Des. Eq.) 167 (1787); cf. Thorp v. Gracey, 2 Kirby 26 (Conn. Super. Ct. 1787) (referring to the contents of a deposition, the court does not use the word testimony).
-
See, e.g., Kissam v. Burrall, 1 Kirby 326 (Conn. Super. Ct. 1787); Lindsay v. Lindsay, 1 S.C. Eq. (1 Des. Eq.) 150, 1 (1787) (referring to "the weight of testimony" given at a particular trial); Watlington v. Howley, 1 S.C. Eq. (1 Des. Eq.) 167 (1787); cf. Thorp v. Gracey, 2 Kirby 26 (Conn. Super. Ct. 1787) (referring to the contents of a deposition, the court does not use the word "testimony").
-
-
-
-
83
-
-
45149107105
-
-
Crawford, 541 U.S. at 68 (Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.).
-
Crawford, 541 U.S. at 68 ("Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.").
-
-
-
-
84
-
-
45149084067
-
-
AMERICAN HERITAGE DICTIONARY (2000), http://www.bartleby.com/61/70/T0127000.html (defining testify as [t]o make a statement based on personal knowledge in support of an asserted fact).
-
AMERICAN HERITAGE DICTIONARY (2000), http://www.bartleby.com/61/70/T0127000.html (defining "testify" as "[t]o make a statement based on personal knowledge in support of an asserted fact").
-
-
-
-
85
-
-
45149126034
-
-
Crawford, 541 U.S. at 69 (Rehnquist, C.J., concurring).
-
Crawford, 541 U.S. at 69 (Rehnquist, C.J., concurring).
-
-
-
-
86
-
-
45149088095
-
-
Indeed, there are other, broader definitions of testify - and the Crawford Court's definition of testify does not really comport with those definitions of witness either. See, e.g., AMERICAN HERITAGE DICTIONARY, supra note 75, http://www.bartleby.com/61/45/W0194500.html (defining witness as 1a. To be present at or have personal knowledge of. b. To take note of; observe. . . . 3. To provide or serve as evidence of). See generally Fisher, supra note 34.
-
Indeed, there are other, broader definitions of "testify" - and the Crawford Court's definition of "testify" does not really comport with those definitions of "witness" either. See, e.g., AMERICAN HERITAGE DICTIONARY, supra note 75, http://www.bartleby.com/61/45/W0194500.html (defining "witness" as "1a. To be present at or have personal knowledge of. b. To take note of; observe. . . . 3. To provide or serve as evidence of"). See generally Fisher, supra note 34.
-
-
-
-
87
-
-
45149102589
-
-
Crawford, 541 U.S. at 43 (citing 3 JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 1397, at 104); see also MERRIAM- WEBSTER'S ONLINE DICTIONARY, http://www.merriam- webster.com/dictionary/witness (defining witness, in part, as an attestation of a fact or event and one who has personal knowledge of something).
-
Crawford, 541 U.S. at 43 (citing 3 JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 1397, at 104); see also MERRIAM- WEBSTER'S ONLINE DICTIONARY, http://www.merriam- webster.com/dictionary/witness (defining witness, in part, as "an attestation of a fact or event" and "one who has personal knowledge of something").
-
-
-
-
88
-
-
45149098107
-
-
Mattox v. United States, 156 U.S. 237, 243 (1895) (emphasis added).
-
Mattox v. United States, 156 U.S. 237, 243 (1895) (emphasis added).
-
-
-
-
89
-
-
45149122155
-
-
Id
-
Id.
-
-
-
-
90
-
-
45149126845
-
-
Id. at 244
-
Id. at 244.
-
-
-
-
91
-
-
45149096704
-
-
AKHIL REED AMAR, THE CONSTITUTION AND CRIMINAL PROCEDURE: FIRST PRINCIPLES 94 (1997).
-
AKHIL REED AMAR, THE CONSTITUTION AND CRIMINAL PROCEDURE: FIRST PRINCIPLES 94 (1997).
-
-
-
-
92
-
-
45149121852
-
-
Id. at 93 (citing U.S. CONST. amend. V.).
-
Id. at 93 (citing U.S. CONST. amend. V.).
-
-
-
-
93
-
-
45149134145
-
-
Consider the highly related in pari materia canon of interpretation. See Wachovia Bank v. Schmidt, 546 U.S. 303, 305 (2006) ([U]nder the in pari materia canon, statutes addressing the same subject matter generally should be read as if they were one law (internal citations omitted)); Edwards v. Carter, 580 F.2d 1055, 1080 (D.C. Cir. 1978) (The rules applicable to the construction of a statute also apply to the construction of a Constitution. (citing Badger v. Hoidale, 88 F.2d 208, 211 (8th Cir. 1937)).
-
Consider the highly related in pari materia canon of interpretation. See Wachovia Bank v. Schmidt, 546 U.S. 303, 305 (2006) ("[U]nder the in pari materia canon, statutes addressing the same subject matter generally should be read as if they were one law (internal citations omitted)); Edwards v. Carter, 580 F.2d 1055, 1080 (D.C. Cir. 1978) ("The rules applicable to the construction of a statute also apply to the construction of a Constitution." (citing Badger v. Hoidale, 88 F.2d 208, 211 (8th Cir. 1937)).
-
-
-
-
94
-
-
36048967383
-
-
U.S. 36
-
Crawford v. Washington, 541 U.S. 36, 68 (2004).
-
(2004)
Washington
, vol.541
, pp. 68
-
-
Crawford, V.1
-
95
-
-
33846632624
-
-
Davis v. Washington, 547 U.S
-
See generally Davis v. Washington, 547 U.S. 813 (2006).
-
(2006)
See generally
, pp. 813
-
-
-
96
-
-
45149099476
-
-
Fisher v. United States, 425 U.S. 391, 393-401 (1976) (noting, in dicta, that [s]pecial problems of privacy which might be presented by subpoena of a personal diary . . . are not involved here); see also In re Grand Jury Proceedings, 632 F.2d 1033, 1043 (3d Cir. 1980) (stating that Fifth Amendment rights would be violated if defendant were required to hand over his pocket diaries). But see Senate Select Comm. on Ethics v. Packwood, 845 F. Supp. 17, 23 (D.D.C. 1994) (Senator Packwood enjoys no Fifth Amendment privilege to avoid surrendering his personal diaries to the Ethics Committee, the act itself presenting no risk of incrimination beyond that he has already reduced to written or recorded form.).
-
Fisher v. United States, 425 U.S. 391, 393-401 (1976) (noting, in dicta, that "[s]pecial problems of privacy which might be presented by subpoena of a personal diary . . . are not involved here"); see also In re Grand Jury Proceedings, 632 F.2d 1033, 1043 (3d Cir. 1980) (stating that Fifth Amendment rights would be violated if defendant were required to hand over his "pocket diaries"). But see Senate Select Comm. on Ethics v. Packwood, 845 F. Supp. 17, 23 (D.D.C. 1994) ("Senator Packwood enjoys no Fifth Amendment privilege to avoid surrendering his personal diaries to the Ethics Committee, the act itself presenting no risk of incrimination beyond that he has already reduced to written or recorded form.").
-
-
-
-
97
-
-
45149106806
-
-
Parle v. Runnels, 387 F.3d 1030, 1037 (9th Cir. 2004) (holding that victim's diary entries were not testimonial because they were not created under circumstances which would lead an objective witness reasonably to believe that [they] would be available for use at a later trial (internal citations omitted)).
-
Parle v. Runnels, 387 F.3d 1030, 1037 (9th Cir. 2004) (holding that victim's diary entries were not testimonial because they were not created "under circumstances which would lead an objective witness reasonably to believe that [they] would be available for use at a later trial" (internal citations omitted)).
-
-
-
-
98
-
-
45149107104
-
-
U.S. CONST. amend. V. ([N]or shall be compelled in any criminal case to be a witness against himself.); see also Counselman v. Hitchcock, 142 U.S. 547, 563-64 (1892) (It is an ancient principle of the law of evidence that a witness shall not be compelled, in any proceeding, to make disclosures or to give testimony which will tend to criminate him or subject him to fines, penalties, o[r] forfeitures. (emphasis added)).
-
U.S. CONST. amend. V. ("[N]or shall be compelled in any criminal case to be a witness against himself."); see also Counselman v. Hitchcock, 142 U.S. 547, 563-64 (1892) ("It is an ancient principle of the law of evidence that a witness shall not be compelled, in any proceeding, to make disclosures or to give testimony which will tend to criminate him or subject him to fines, penalties, o[r] forfeitures." (emphasis added)).
-
-
-
-
99
-
-
45149111232
-
-
Precedent comports with this textual understanding. United States v. Oates, 560 F.2d 45, 82 n.39 (2d Cir. 1977, I]t is the prosecutor who should have the burden of producing witnesses against the defendant, internal citations omitted, see also State v. Fisher, 563 P.2d 1012, 1018 (Kan. 1977, F]or the declarant to be subject to full and effective cross-examination by the defendant, he must be called to testify by the state, State v. Coombs, 821 A.2d 1030, 1033 (N.H. 2003, The duty to confront a defendant with witnesses falls upon the State, quoting State v. Larochelle, 297 A.2d 223, 223 (N.H. 1972, Grimes, J, dissenting), State v. Rohrich, 939 P.2d 697, 700-01 Wash. 1997, finding that the Confrontation Clause requires the State to elicit damaging testimony from the witness so the defendant may cross examine if he so chooses
-
Precedent comports with this textual understanding. United States v. Oates, 560 F.2d 45, 82 n.39 (2d Cir. 1977) ("[I]t is the prosecutor who should have the burden of producing witnesses against the defendant." (internal citations omitted)); see also State v. Fisher, 563 P.2d 1012, 1018 (Kan. 1977) ("[F]or the declarant to be subject to full and effective cross-examination by the defendant, he must be called to testify by the state."); State v. Coombs, 821 A.2d 1030, 1033 (N.H. 2003) ("The duty to confront a defendant with witnesses falls upon the State." (quoting State v. Larochelle, 297 A.2d 223, 223 (N.H. 1972) (Grimes, J., dissenting))); State v. Rohrich, 939 P.2d 697, 700-01 (Wash. 1997) (finding that the Confrontation Clause "requires the State to elicit damaging testimony from the witness so the defendant may cross examine if he so chooses").
-
-
-
-
100
-
-
0039080683
-
-
In Boyd v. United States, 116 U.S. 616, 633 (1886, the Court observed, We have already noticed the intimate relation between the two amendments. They throw great light on each other. This statement has arguably been discredited. See Akhil Reed Amar, Fourth Amendment First Principles, 107 HARV. L. REV. 757, 790 (1994, Boyd's mistake was to misread both the Reasonableness Clause and the Incrimination Clause by trying to fuse them together, Michael Pardo, Disentangling the Fourth Amendment and the Self-incrimination Clause, 90 IOWA L. REV. 1857, 1859 2005, Subsequent doctrine has, in Justice O'Connor's words from over twenty years ago, sounded the death knell for Boyd, As the Court has repelled from Boyd, scholars have also, for the most part, rejected the opinion's analysis for both its reliance on 'our old friend, Lochner-era property fetishism, and, more important
-
In Boyd v. United States, 116 U.S. 616, 633 (1886), the Court observed, "We have already noticed the intimate relation between the two amendments. They throw great light on each other." This statement has arguably been discredited. See Akhil Reed Amar, Fourth Amendment First Principles, 107 HARV. L. REV. 757, 790 (1994) ("Boyd's mistake was to misread both the Reasonableness Clause and the Incrimination Clause by trying to fuse them together."); Michael Pardo, Disentangling the Fourth Amendment and the Self-incrimination Clause, 90 IOWA L. REV. 1857, 1859 (2005) ("Subsequent doctrine has, in Justice O'Connor's words from over twenty years ago, 'sounded the death knell for Boyd.' As the Court has repelled from Boyd, scholars have also, for the most part, rejected the opinion's analysis for both its reliance on 'our old friend, Lochner-era property fetishism,' and, more importantly, its fusion of Fourth and Fifth Amendment analysis.").
-
-
-
-
101
-
-
45149116871
-
-
But see Aaron Clemens, The Pending Reinvigoration of Boyd: Personal Papers Are Protected by the Privilege Against Self-incrimination, 25 N. ILL. U. L. REV. 75 (2004) (identifying recent Supreme Court precedent, such as United States v. Hubbell, 530 U.S. 27 (2000), suggesting that the interpretational relationship between the two amendments has endured or at least resurfaced).
-
But see Aaron Clemens, The Pending Reinvigoration of Boyd: Personal Papers Are Protected by the Privilege Against Self-incrimination, 25 N. ILL. U. L. REV. 75 (2004) (identifying recent Supreme Court precedent, such as United States v. Hubbell, 530 U.S. 27 (2000), suggesting that the interpretational relationship between the two amendments has endured or at least resurfaced).
-
-
-
-
103
-
-
45149099175
-
-
See City of Boerne v. Flores, 521 U.S. 507, 530 (1997).
-
See City of Boerne v. Flores, 521 U.S. 507, 530 (1997).
-
-
-
-
104
-
-
45149088691
-
-
Williams v. State, 19 Ga. 402 (1856).
-
Williams v. State, 19 Ga. 402 (1856).
-
-
-
-
105
-
-
45149090602
-
-
Graham C. Lilly, Notes on the Confrontation Clause and Ohio v. Roberts, 36 U. FLA. L. REV. 207, 208-09 (1984) (expressing skepticism toward this view).
-
Graham C. Lilly, Notes on the Confrontation Clause and Ohio v. Roberts, 36 U. FLA. L. REV. 207, 208-09 (1984) (expressing skepticism toward this view).
-
-
-
-
106
-
-
45149119845
-
-
Margaret A. Berger, The Deconstitutionalization of the Confrontation Clause: A Proposal for a Prosecutorial Restraint Model, 76 MINN. L. REV. 557, 578-87 (1992) (presenting an argument that trials like Sir Raleigh's played a role); see also Crawford v. Washington, 541 U.S. 36, 43 (2004).
-
Margaret A. Berger, The Deconstitutionalization of the Confrontation Clause: A Proposal for a Prosecutorial Restraint Model, 76 MINN. L. REV. 557, 578-87 (1992) (presenting an argument that trials like Sir Raleigh's played a role); see also Crawford v. Washington, 541 U.S. 36, 43 (2004).
-
-
-
-
107
-
-
45149100306
-
-
See Williams, 19 Ga. 402.
-
See Williams, 19 Ga. 402.
-
-
-
-
108
-
-
45149104466
-
-
As the articles in supra note 11 reveal, with few exceptions, commentators have written about how to implement Crawford - not why it is wrong. See, e.g., Jerome C. Latimer, Confrontation After Crawford: The Decision's Impact on How Hearsay Is Analyzed Under the Confrontation Clause, 36 SETON HALL L. REV. 327, 419 (2006) (The Supreme Court in Crawford was correct to take the difficult, but necessary, step of rejecting the jurisprudence derived from the Roberts reliability approach and thereby restoring confrontation to its true purpose.);
-
As the articles in supra note 11 reveal, with few exceptions, commentators have written about how to implement Crawford - not why it is wrong. See, e.g., Jerome C. Latimer, Confrontation After Crawford: The Decision's Impact on How Hearsay Is Analyzed Under the Confrontation Clause, 36 SETON HALL L. REV. 327, 419 (2006) ("The Supreme Court in Crawford was correct to take the difficult, but necessary, step of rejecting the jurisprudence derived from the Roberts reliability approach and thereby restoring confrontation to its true purpose.");
-
-
-
-
109
-
-
45149125761
-
Pipe-Dreams of Truth and Fairness: Is Crawford v. Washington a Breakthrough for Sixth Amendment Confrontation Rights?, 9 BUFF
-
noting that Crawford is a generally favorable development with ample inspiration, The 7-2 opinion, with the two partial dissenters no longer on the Court, does not appear to be going anywhere any time soon
-
Susanne C. Walther, Pipe-Dreams of Truth and Fairness: Is Crawford v. Washington a Breakthrough for Sixth Amendment Confrontation Rights?, 9 BUFF. CRIM. L. REV. 453, 474 (2006) (noting that Crawford is a generally favorable development with "ample inspiration"). The 7-2 opinion - with the two partial dissenters no longer on the Court - does not appear to be going anywhere any time soon.
-
(2006)
CRIM. L. REV
, vol.453
, pp. 474
-
-
Walther, S.C.1
-
110
-
-
42149179454
-
-
Grutter v. Bollinger, 539 U.S
-
See generally Grutter v. Bollinger, 539 U.S. 306 (2003).
-
(2003)
See generally
, pp. 306
-
-
-
111
-
-
45149118729
-
-
United States v. O'Brien, 391 U.S. 367, 377 (1968) ([W]e think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.).
-
United States v. O'Brien, 391 U.S. 367, 377 (1968) ("[W]e think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.").
-
-
-
-
112
-
-
45149111495
-
-
Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 557, 566 (1980) (allowing the prohibition of false commercial speech, as distinguished from other forms of speech). For an argument that the chief purpose of the First Amendment is political, see ALEXANDER MEIKLEJOHN, POLITICAL FREEDOM: THE CONSTITUTIONAL POWERS OF THE PEOPLE 27 (1948).
-
Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 557, 566 (1980) (allowing the prohibition of false commercial speech, as distinguished from other forms of speech). For an argument that the chief purpose of the First Amendment is political, see ALEXANDER MEIKLEJOHN, POLITICAL FREEDOM: THE CONSTITUTIONAL POWERS OF THE PEOPLE 27 (1948).
-
-
-
-
113
-
-
45149116874
-
-
See Méndez, supra note 13, at 609 ([T]he challenge will be to formulate a test that can withstand the criticisms the Court leveled at Roberts.). Professor Robert Mosteller has pointed out that the birth of Crawford did not necessitate the death of Roberts. Robert P. Mosteller, Confrontation as Constitutional Criminal Procedure: Crawford's Birth Did Not Require That Roberts Had to Die, 15 J.L. & POL'Y 685 (2007). Additionally, Professor Tom Lininger has proposed that legislatures revive Roberts' requirement that a hearsay declarant be unavailable before prosecutors are permitted to use that declarant's statement against the accused.
-
See Méndez, supra note 13, at 609 ("[T]he challenge will be to formulate a test that can withstand the criticisms the Court leveled at Roberts."). Professor Robert Mosteller has pointed out that the birth of Crawford did not necessitate the death of Roberts. Robert P. Mosteller, Confrontation as Constitutional Criminal Procedure: Crawford's Birth Did Not Require That Roberts Had to Die, 15 J.L. & POL'Y 685 (2007). Additionally, Professor Tom Lininger has proposed that legislatures revive Roberts' requirement that a hearsay declarant be unavailable before prosecutors are permitted to use that declarant's statement against the accused.
-
-
-
-
114
-
-
33846154629
-
Reconceptualizing Confrontation After Davis, 85
-
Tom Lininger, Reconceptualizing Confrontation After Davis, 85 TEX. L. REV 271, 307 (2006).
-
(2006)
TEX. L. REV
, vol.271
, pp. 307
-
-
Lininger, T.1
-
115
-
-
45149096154
-
-
Crawford v. Washington, 541 U.S. 36, 60 (2004) (This malleable standard often fails to protect against paradigmatic confrontation violations.).
-
Crawford v. Washington, 541 U.S. 36, 60 (2004) ("This malleable standard often fails to protect against paradigmatic confrontation violations.").
-
-
-
-
116
-
-
45149120403
-
-
See supra Introduction.
-
See supra Introduction.
-
-
-
-
117
-
-
45149130522
-
-
Ohio v. Roberts, 448 U.S. 56, 66 (1980).
-
Ohio v. Roberts, 448 U.S. 56, 66 (1980).
-
-
-
-
118
-
-
45149104467
-
-
Id
-
Id.
-
-
-
-
119
-
-
45149110399
-
-
For a non-exhaustive list of such cases, see supra note 14
-
For a non-exhaustive list of such cases, see supra note 14.
-
-
-
-
120
-
-
45149108450
-
-
120 P.3d 1170, 1179 (Nev. 2005).
-
120 P.3d 1170, 1179 (Nev. 2005).
-
-
-
-
121
-
-
45149088692
-
-
State v. Pierre, 890 A.2d 474, 503 (Conn. 2006); see also State v. Rivera, 844 A.2d 191 (Conn. 2004).
-
State v. Pierre, 890 A.2d 474, 503 (Conn. 2006); see also State v. Rivera, 844 A.2d 191 (Conn. 2004).
-
-
-
-
122
-
-
45149109267
-
-
See, e.g., Brown v. Uphoff, 381 F.3d 1219, 1225 (10th Cir. 2004).
-
See, e.g., Brown v. Uphoff, 381 F.3d 1219, 1225 (10th Cir. 2004).
-
-
-
-
123
-
-
45149125235
-
-
880 A.2d 1066, 1099-100 (D.C. 2005).
-
880 A.2d 1066, 1099-100 (D.C. 2005).
-
-
-
-
124
-
-
45149109560
-
-
Hammon v. State, 809 N.E.2d 945 (Ind. 2005).
-
Hammon v. State, 809 N.E.2d 945 (Ind. 2005).
-
-
-
-
125
-
-
45149132118
-
-
Hammond, 880 A.2d at 1103.
-
Hammond, 880 A.2d at 1103.
-
-
-
-
126
-
-
45149133610
-
-
Flores v. Nevada, 120 P.3d 1170, 1179 (Nev. 2005) (The district court below considered corroborative medical evidence in assessing reliability under Wright and Roberts. This was an error under Wright.).
-
Flores v. Nevada, 120 P.3d 1170, 1179 (Nev. 2005) ("The district court below considered corroborative medical evidence in assessing reliability under Wright and Roberts. This was an error under Wright.").
-
-
-
-
127
-
-
45149135486
-
-
See, e.g., Laumer v. United States, 409 A.2d 190, 199-200 (D.C. 1979).
-
See, e.g., Laumer v. United States, 409 A.2d 190, 199-200 (D.C. 1979).
-
-
-
-
128
-
-
45149109848
-
-
This inconsistent application rages despite the fact that the Supreme Court stated in Idaho v. Wright that hearsay evidence must possess indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial. 497 U.S. 805, 822 1990
-
This inconsistent application rages despite the fact that the Supreme Court stated in Idaho v. Wright that hearsay evidence "must possess indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial." 497 U.S. 805, 822 (1990).
-
-
-
-
129
-
-
45149129327
-
-
Flores, 120 P.3dat 1181.
-
Flores, 120 P.3dat 1181.
-
-
-
-
130
-
-
45149130523
-
-
See, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 844 (1992) (Liberty finds no refuge in a jurisprudence of doubt.).
-
See, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 844 (1992) ("Liberty finds no refuge in a jurisprudence of doubt.").
-
-
-
-
131
-
-
45149103140
-
-
See, e.g., Crawford v. Washington, 541 U.S. 36, 63 (2004) (stating that the Roberts framework is so unpredictable that it fails to provide meaningful protection from even core confrontation violations).
-
See, e.g., Crawford v. Washington, 541 U.S. 36, 63 (2004) (stating that the Roberts "framework is so unpredictable that it fails to provide meaningful protection from even core confrontation violations").
-
-
-
-
132
-
-
45149131816
-
-
United States v. Nick, 604 F.2d 1199, 1204 (9th Cir. 1979).
-
United States v. Nick, 604 F.2d 1199, 1204 (9th Cir. 1979).
-
-
-
-
133
-
-
45149090905
-
-
865 A.2d 1135, 1148 (Conn. 2005).
-
865 A.2d 1135, 1148 (Conn. 2005).
-
-
-
-
134
-
-
45149122417
-
-
See, e.g., United States v. Farley, 992 F.2d 1122, 1126 (10th Cir. 1993); United States v. Grooms, 978 F.2d 425, 427 (8th Cir. 1992); United States v. George, 960 F.2d 97, 100 (9th Cir. 1992).
-
See, e.g., United States v. Farley, 992 F.2d 1122, 1126 (10th Cir. 1993); United States v. Grooms, 978 F.2d 425, 427 (8th Cir. 1992); United States v. George, 960 F.2d 97, 100 (9th Cir. 1992).
-
-
-
-
135
-
-
45149085389
-
-
Webb v. Lewis, 44 F.3d 1387, 1394 (9th Cir. 1994) (Nelson, J., dissenting). This dissenting opinion succinctly describes the majority's approach. The majority states: Taken by itself, the videotape does not carry guarantees of trustworthiness. Heather's language is not 'unexpected of a child of similar age.' Id. at 1392 (majority opinion).
-
Webb v. Lewis, 44 F.3d 1387, 1394 (9th Cir. 1994) (Nelson, J., dissenting). This dissenting opinion succinctly describes the majority's approach. The majority states: "Taken by itself, the videotape does not carry guarantees of trustworthiness. Heather's language is not 'unexpected of a child of similar age.'" Id. at 1392 (majority opinion).
-
-
-
-
136
-
-
45149094166
-
-
N.J.K. v. Juvenile Officer, 139 S.W.3d 250, 258 (Mo. Ct. App. 2004).
-
N.J.K. v. Juvenile Officer, 139 S.W.3d 250, 258 (Mo. Ct. App. 2004).
-
-
-
-
137
-
-
45149114695
-
-
State v. Worrel, 933 S.W.2d 431, 434 n.3 (Mo. Ct. App. 1996) (citing State v. Redman, 916 S.W.2d 787, 792 (Mo. 1996) (en banc)).
-
State v. Worrel, 933 S.W.2d 431, 434 n.3 (Mo. Ct. App. 1996) (citing State v. Redman, 916 S.W.2d 787, 792 (Mo. 1996) (en banc)).
-
-
-
-
138
-
-
45149104186
-
-
See, e.g., People v. Sharp, 825 N.E.2d 706, 714 (Ill. App. Ct. 2005) ([The child] was sexually assaulted on one occasion, and the fact that she did not know the term 'penetrated' suggests (if anything) that she was not coached as to what she should say.).
-
See, e.g., People v. Sharp, 825 N.E.2d 706, 714 (Ill. App. Ct. 2005) ("[The child] was sexually assaulted on one occasion, and the fact that she did not know the term 'penetrated' suggests (if anything) that she was not coached as to what she should say.").
-
-
-
-
139
-
-
45149122702
-
-
In fact, this approach was urged by the defense in Sharp. Id, Defendant seems to suggest that if [the child] were the victim of sexual assault, she should be better versed in sexual terminology
-
In fact, this approach was urged by the defense in Sharp. Id. ("Defendant seems to suggest that if [the child] were the victim of sexual assault, she should be better versed in sexual terminology.").
-
-
-
-
140
-
-
45149131059
-
-
Worrel, 933 S.W.2d at 433 n.3.
-
Worrel, 933 S.W.2d at 433 n.3.
-
-
-
-
141
-
-
45149105990
-
-
Coy v. Iowa, 487 U.S. 1012, 1016 (1988) ([The Confrontation Clause] confers at least a right to meet face to face all those who appear and give evidence at trial. (internal citations and quotation marks omitted)). But see 5 JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 1397, at 158 (James H. Chadbourn ed., rev. 1974) (There was never at the common law any recognized right to an indispensable thing called confrontation as distinguished from cross-examination.).
-
Coy v. Iowa, 487 U.S. 1012, 1016 (1988) ("[The Confrontation Clause] confers at least a right to meet face to face all those who appear and give evidence at trial." (internal citations and quotation marks omitted)). But see 5 JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 1397, at 158 (James H. Chadbourn ed., rev. 1974) ("There was never at the common law any recognized right to an indispensable thing called confrontation as distinguished from cross-examination.").
-
-
-
-
142
-
-
45149124445
-
-
Alford v. United States, 282 U.S. 687, 694 (1931) ([N]o obligation is imposed on the court, such as that suggested below, to protect a witness from being discredited on cross-examination, short of an attempted invasion of his constitutional protection from self incrimination, properly invoked.).
-
Alford v. United States, 282 U.S. 687, 694 (1931) ("[N]o obligation is imposed on the court, such as that suggested below, to protect a witness from being discredited on cross-examination, short of an attempted invasion of his constitutional protection from self incrimination, properly invoked.").
-
-
-
-
143
-
-
45149130526
-
-
See also WIGMORE, supra note 129, § 1395, at 150 (The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination.). See generally Davis v. Alaska, 415 U.S. 308 (1974).
-
See also WIGMORE, supra note 129, § 1395, at 150 ("The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination."). See generally Davis v. Alaska, 415 U.S. 308 (1974).
-
-
-
-
144
-
-
45149100854
-
-
ZECHARIAH CHAFEE, JR., THE BLESSINGS OF LIBERTY 35 (1956). The Supreme Court quoted this passage in Jay v. Boyd, 351 U.S. 345, 375 (1956) (Douglas, J., dissenting), and Coy, 487 U.S. at 1019.
-
ZECHARIAH CHAFEE, JR., THE BLESSINGS OF LIBERTY 35 (1956). The Supreme Court quoted this passage in Jay v. Boyd, 351 U.S. 345, 375 (1956) (Douglas, J., dissenting), and Coy, 487 U.S. at 1019.
-
-
-
-
145
-
-
45149116873
-
-
Davis, 415 U.S. at 316; see also United States v. Owens, 484 U.S. 554, 559 (1988) (noting that a cross-examination may test a witness's lack of care or attentiveness, his poor eyesight, and even (what is often a prime objective of cross-examination) the very fact that he has a bad memory (citations omitted)); Bartlett v. Kan. City Pub. Serv. Co., 160 S.W.2d 740, 745 (Mo. 1942) (stating that cross-examination is a safeguard against, in part, mistaken evidence); Paul J. Passanante & Dawn M. Mefford, Cross-Examination, 62 J. Mo. B. 28 (2006) (noting that one of counsel's goals at cross-examination is to test the strength of [witnesses'] memory, knowledge and perceptions).
-
Davis, 415 U.S. at 316; see also United States v. Owens, 484 U.S. 554, 559 (1988) (noting that a cross-examination may test a witness's "lack of care or attentiveness, his poor eyesight, and even (what is often a prime objective of cross-examination) the very fact that he has a bad memory" (citations omitted)); Bartlett v. Kan. City Pub. Serv. Co., 160 S.W.2d 740, 745 (Mo. 1942) (stating that cross-examination is a safeguard against, in part, "mistaken evidence"); Paul J. Passanante & Dawn M. Mefford, Cross-Examination, 62 J. Mo. B. 28 (2006) (noting that one of counsel's goals at cross-examination is to "test the strength of [witnesses'] memory, knowledge and perceptions").
-
-
-
-
146
-
-
45149124980
-
-
MANUAL OF MODEL CRIMINAL JURY INSTRUCTIONS FOR THE NINTH CIRCUIT §1.8 (2003), available at http://www.ca9.uscourts.gov/web/sdocuments.nsf/ dcf4f914455891d 488 2564b40001f6dc/e48de3cb42964d4e882564b4000378f5?OpenDocument (listing the witness' memory as a factor the jury should consider).
-
MANUAL OF MODEL CRIMINAL JURY INSTRUCTIONS FOR THE NINTH CIRCUIT §1.8 (2003), available at http://www.ca9.uscourts.gov/web/sdocuments.nsf/ dcf4f914455891d 488 2564b40001f6dc/e48de3cb42964d4e882564b4000378f5?OpenDocument (listing "the witness' memory" as a factor the jury should consider).
-
-
-
-
147
-
-
45149096440
-
-
F. LEE BAILEY & KENNETH J. FISHMAN, CRIMINAL TRIAL TECHNIQUES § 62:3 (2d ed. 1994) (citing external studies).
-
F. LEE BAILEY & KENNETH J. FISHMAN, CRIMINAL TRIAL TECHNIQUES § 62:3 (2d ed. 1994) (citing external studies).
-
-
-
-
148
-
-
45149122967
-
-
Id. § 62:5. Here, F. Lee Bailey provides a model exchange between lawyer and witness: Q: What color was the shirt? A: Light shirt and dark pants? Q: Was the shirt light blue? A: It could have been. . . . Q: How many men were in the lineup? A: Five. Q: Could it have been six? A: Possibly. Q: How did you identify my client at the lineup? A: I said, I think it's number six. Q: You said, think? A: Yes. Id.
-
Id. § 62:5. Here, F. Lee Bailey provides a model exchange between lawyer and witness: Q: What color was the shirt? A: Light shirt and dark pants? Q: Was the shirt light blue? A: It could have been. . . . Q: How many men were in the lineup? A: Five. Q: Could it have been six? A: Possibly. Q: How did you identify my client at the lineup? A: I said, "I think it's number six." Q: You said, "think"? A: Yes. Id.
-
-
-
-
149
-
-
45149109268
-
-
Id. § 62:3
-
Id. § 62:3.
-
-
-
-
150
-
-
45149115234
-
-
1 LEONARD B. SAND ET AL., MODERN FEDERAL JURY INSTRUCTIONS-CRIMINAL § 7.01 (2007) (emphasis added).
-
1 LEONARD B. SAND ET AL., MODERN FEDERAL JURY INSTRUCTIONS-CRIMINAL § 7.01 (2007) (emphasis added).
-
-
-
-
152
-
-
66149137778
-
The Origins of the Confrontation Clause: An Alternative History, 27
-
Randolph N. Jonakait, The Origins of the Confrontation Clause: An Alternative History, 27 RUTGERS L.J. 77, 138 (1995).
-
(1995)
RUTGERS L.J
, vol.77
, pp. 138
-
-
Jonakait, R.N.1
-
153
-
-
45149087077
-
-
Id. at 157-58
-
Id. at 157-58.
-
-
-
-
154
-
-
45149124981
-
-
Davis v. Alaska, 415 U.S. 308, 317 n.5 (1974) (requiring the lower court to allow a cross-examination regarding potential bias because [a] partiality of mind at some former time may be used as the basis of an argument to the same state at the time of testifying; though the ultimate object is to establish partiality at the time of testifying (quoting 3A JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 940, at 776 (Chadbourn rev. 1970))).
-
Davis v. Alaska, 415 U.S. 308, 317 n.5 (1974) (requiring the lower court to allow a cross-examination regarding potential bias because "[a] partiality of mind at some former time may be used as the basis of an argument to the same state at the time of testifying; though the ultimate object is to establish partiality at the time of testifying" (quoting 3A JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 940, at 776 (Chadbourn rev. 1970))).
-
-
-
-
155
-
-
45149113472
-
-
United States v. Inadi, 475 U.S. 387, 410 (1986); Phillips v. Neil, 452 F.2d 337, 348 (6th Cir. 1971); N.Y. Life Ins. Co. v. Taylor, 147 F.2d 297, 305 (D.C. Cir. 1945); see also Cipriotti v. Bd. of Dirs. of Northridge Hosp. Found. Med. Ctr., 147 Cal. App. 3d 144, 156 (1983) (assuming without deciding that defendants have a right of immediate cross-examination). But see Beavers v. State, 492 P.2d 88, 93 (Alaska 1971) (questioning the value of immediacy).
-
United States v. Inadi, 475 U.S. 387, 410 (1986); Phillips v. Neil, 452 F.2d 337, 348 (6th Cir. 1971); N.Y. Life Ins. Co. v. Taylor, 147 F.2d 297, 305 (D.C. Cir. 1945); see also Cipriotti v. Bd. of Dirs. of Northridge Hosp. Found. Med. Ctr., 147 Cal. App. 3d 144, 156 (1983) (assuming without deciding that defendants have a "right of immediate cross-examination"). But see Beavers v. State, 492 P.2d 88, 93 (Alaska 1971) (questioning the value of immediacy).
-
-
-
-
156
-
-
45149131817
-
-
State v. Saporen, 285 N.W. 898 (Minn. 1939).
-
State v. Saporen, 285 N.W. 898 (Minn. 1939).
-
-
-
-
157
-
-
45149092528
-
-
Id. at 901
-
Id. at 901.
-
-
-
-
158
-
-
45149130525
-
-
See, e.g., BOULDER COUNTY BAR ASS'N, BAR MEDIA MANUAL § 12.4 (2007), available at www.boulder-bar.org/bar_media/trial/12.4.html.
-
See, e.g., BOULDER COUNTY BAR ASS'N, BAR MEDIA MANUAL § 12.4 (2007), available at www.boulder-bar.org/bar_media/trial/12.4.html.
-
-
-
-
159
-
-
45149130092
-
-
Jeffrey T. Frederick, Persuasion at Trial: Opening Statements, in 2 DEFENSE PRACTICE NOTEBOOK 76, 78 (Def. Research Inst. ed., 1996), available at http://www.nlrg.com/jrsd/articles/opening. html (recommending: Do not waive opening statements.).
-
Jeffrey T. Frederick, Persuasion at Trial: Opening Statements, in 2 DEFENSE PRACTICE NOTEBOOK 76, 78 (Def. Research Inst. ed., 1996), available at http://www.nlrg.com/jrsd/articles/opening. html (recommending: "Do not waive opening statements.").
-
-
-
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160
-
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45149130810
-
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Id. (By waiving an opening statement, the attorney risks the jurors' adopting the opponent's view of the case at the outset of trial.).
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Id. ("By waiving an opening statement, the attorney risks the jurors' adopting the opponent's view of the case at the outset of trial.").
-
-
-
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161
-
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45149086494
-
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Of the Disqualification of Parties as Witnesses, 5 AM. L. REG. 257, 263-64 (1857),
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Of the Disqualification of Parties as Witnesses, 5 AM. L. REG. 257, 263-64 (1857),
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-
-
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162
-
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45149100042
-
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cited in Joel N. Bodansky, The Abolition of the Party-Witness Disqualification: An Historical Survey, 70 KY. L.J. 91, 96 (1981).
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cited in Joel N. Bodansky, The Abolition of the Party-Witness Disqualification: An Historical Survey, 70 KY. L.J. 91, 96 (1981).
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-
-
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163
-
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45149120948
-
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Ohio v. Roberts, 448 U.S. 56, 66 (1980).
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Ohio v. Roberts, 448 U.S. 56, 66 (1980).
-
-
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164
-
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45149115233
-
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Thompson v. Trevanion, (1694) 90 Eng. Rep. 179 (K.B.).
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Thompson v. Trevanion, (1694) 90 Eng. Rep. 179 (K.B.).
-
-
-
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165
-
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45149096994
-
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King v. Woodcock, (1789) 168 Eng. Rep. 352 (K.B.).
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King v. Woodcock, (1789) 168 Eng. Rep. 352 (K.B.).
-
-
-
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166
-
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45149091716
-
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Regina v. Megson, (1854) 173 Eng. Rep. 894 (K.B.) (providing an alternative justification for what we now call the excited utterance exception; that is, such statements shew [the witness'] credit and the accuracy of her recollection (emphasis added)).
-
Regina v. Megson, (1854) 173 Eng. Rep. 894 (K.B.) (providing an alternative justification for what we now call the excited utterance exception; that is, such statements "shew [the witness'] credit and the accuracy of her recollection" (emphasis added)).
-
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-
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167
-
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45149134144
-
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FED. R. EVID. 803 advisory committee's note (citing 6 JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 1747, at 135 (3d ed. 1940)) (emphasis added).
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FED. R. EVID. 803 advisory committee's note (citing 6 JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 1747, at 135 (3d ed. 1940)) (emphasis added).
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168
-
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45149084344
-
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Id.; see also Robert M. Hutchins & Donald Slesinger, Some Observations on the Law of Evidence: Spontaneous Exclamations, 28 COLUM. L. REV. 432 (1928).
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Id.; see also Robert M. Hutchins & Donald Slesinger, Some Observations on the Law of Evidence: Spontaneous Exclamations, 28 COLUM. L. REV. 432 (1928).
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169
-
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45149101419
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White v. Illinois, 502 U.S. 346, 355 n.8 (1992) (noting that the exception is several centuries old).
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White v. Illinois, 502 U.S. 346, 355 n.8 (1992) (noting that the exception is several centuries old).
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170
-
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45149113226
-
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FED. R. EVID. 803 advisory committee's note (explaining that there is a strong motivation to be truthful when someone makes statements for the purposes of medical treatment); cf. United States v. Yazzie, 38 F. Appx. 407, 412 (9th Cir. 2002) (finding this exception to be firmly rooted); Dana v. Dep't of Corr., 958 F.2d 237, 239 (8th Cir. 1992) (same).
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FED. R. EVID. 803 advisory committee's note (explaining that there is a "strong motivation to be truthful" when someone makes statements for the purposes of medical treatment); cf. United States v. Yazzie, 38 F. Appx. 407, 412 (9th Cir. 2002) (finding this exception to be "firmly rooted"); Dana v. Dep't of Corr., 958 F.2d 237, 239 (8th Cir. 1992) (same).
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172
-
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45149129054
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168 Eng. Rep. 352 (K.B.).
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(1789) 168 Eng. Rep. 352 (K.B.).
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-
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173
-
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45149090904
-
-
See WIGMORE, supra note 129, §§ 1430, 1438, 1443. For discussion, see John B. Myers et. al., Hearsay Exceptions: Adjusting the Ratio of Intuition to Psychological Science, 65 LAW & CONTEMP. PROBS. 3 n.2 (2002) (noting that Wigmore's rationale for this exception is that the dying person is free from all ordinary motives to misstate (emphasis added)).
-
See WIGMORE, supra note 129, §§ 1430, 1438, 1443. For discussion, see John B. Myers et. al., Hearsay Exceptions: Adjusting the Ratio of Intuition to Psychological Science, 65 LAW & CONTEMP. PROBS. 3 n.2 (2002) (noting that Wigmore's rationale for this exception is that the dying person is "free from all ordinary motives to misstate" (emphasis added)).
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174
-
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45149094418
-
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Coy v. Iowa states that yet another such value is the appearance of fairness in the trial process. 487 U.S. 1012, 1018-19 (1988) (Given these human feelings of what is necessary for fairness, the right of confrontation contributes to the establishment of a system of criminal justice in which the perception as well as the reality of fairness prevails. (internal citation and quotation marks omitted)).
-
Coy v. Iowa states that yet another such value is the appearance of fairness in the trial process. 487 U.S. 1012, 1018-19 (1988) ("Given these human feelings of what is necessary for fairness, the right of confrontation contributes to the establishment of a system of criminal justice in which the perception as well as the reality of fairness prevails." (internal citation and quotation marks omitted)).
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175
-
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0013238628
-
Loss of Innocence: Eyewitness Identification and Proof of Guilt, 16
-
See
-
See Samuel R. Gross, Loss of Innocence: Eyewitness Identification and Proof of Guilt, 16 J. LEGAL STUD. 395, 413 (1987).
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(1987)
J. LEGAL STUD
, vol.395
, pp. 413
-
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Gross, S.R.1
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176
-
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21344437052
-
-
Professor Gross explains in Samuel Gross et. al., Exonerations in the United States: 1989 Through 2003, 95 J. CRIM. L. & CRIMINOLOGY 523, 530 (2005), that this may be an even greater problem than previously thought. DNA has exonerated 121 individuals in rape cases, eighty-eight percent of whom were convicted as a result of false identification. Id. He notes that such false identifications are more common in robberies than in rape cases - but DNA is not as frequently available. Id. at 530-31.
-
Professor Gross explains in Samuel Gross et. al., Exonerations in the United States: 1989 Through 2003, 95 J. CRIM. L. & CRIMINOLOGY 523, 530 (2005), that this may be an even greater problem than previously thought. DNA has exonerated 121 individuals in rape cases, eighty-eight percent of whom were convicted as a result of false identification. Id. He notes that such false identifications are more common in robberies than in rape cases - but DNA is not as frequently available. Id. at 530-31.
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177
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45149125509
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Courts should permit the admission of nontestimonial hearsay if it falls into a firmly rooted hearsay exception and the defense fails to show particularized guarantees of untrustworthiness
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Courts should permit the admission of nontestimonial hearsay if it falls into a firmly rooted hearsay exception and the defense fails to show particularized guarantees of untrustworthiness.
-
-
-
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178
-
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45149093358
-
-
For discussion of a close cousin of this proposal, see Lynn McLain, Post-Crawford: Time to Liberalize the Substantive Admissibility of a Testifying Witness's Prior Consistent Statements, 74 UMKC L. REV. 1 (2005).
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For discussion of a close cousin of this proposal, see Lynn McLain, Post-Crawford: Time to Liberalize the Substantive Admissibility of a Testifying Witness's Prior Consistent Statements, 74 UMKC L. REV. 1 (2005).
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180
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45149131295
-
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The Advisory Committee Notes that accompany Rule 806 note that some courts already allowed this procedure prior to the rule's passage. Id, see, e.g, Carver v. United States, 164 U.S. 694, 698 (1897, As these declarations are necessarily ex parte, we think the defendant is entitled to the benefit of any advantage he may have lost by the want of an opportunity for cross-examination, citing Rex v. Ashton, 2 Lewin 147 (1837, People v. Collup, 167 P.2d 714 Cal. 1946, holding that where a witness was unavailable, t]he defendants are helpless in meeting the testimony by a method which may refute it entirely or cast serious doubts upon its veracity, namely, subsequent contradictory statements or admissions by the witness that the testimony was false. Justice and fairness compel one of two results, that the testimony at the former trial be excluded or that the impeaching evidence be admitted, Courts were not unanimous in this view, however. See Pe
-
The Advisory Committee Notes that accompany Rule 806 note that some courts already allowed this procedure prior to the rule's passage. Id.; see, e.g., Carver v. United States, 164 U.S. 694, 698 (1897) ("As these declarations are necessarily ex parte, we think the defendant is entitled to the benefit of any advantage he may have lost by the want of an opportunity for cross-examination." (citing Rex v. Ashton, 2 Lewin 147 (1837)); People v. Collup, 167 P.2d 714 (Cal. 1946) (holding that where a witness was unavailable, "[t]he defendants are helpless in meeting the testimony by a method which may refute it entirely or cast serious doubts upon its veracity, namely, subsequent contradictory statements or admissions by the witness that the testimony was false. Justice and fairness compel one of two results, that the testimony at the former trial be excluded or that the impeaching evidence be admitted"). Courts were not unanimous in this view, however. See People v. Hines, 284 N.Y. 93, 115 (1940) ("The law is well settled that a deceased witness whose prior testimony is admitted may not be impeached by showing alleged contradictory or inconsistent statements or alleged declarations that the prior testimony was false.").
-
-
-
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181
-
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45149121594
-
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GA. CODE ANN. § 24-3-33 (2007) (codifying the state's hearsay rules).
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GA. CODE ANN. § 24-3-33 (2007) (codifying the state's hearsay rules).
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-
-
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182
-
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45149130524
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Smith v. State, 510 S.E.2d 1, 7-8 (Ga. 1998) (allowing impeachment of statements admitted under the dying declaration and excited utterance exceptions to the hearsay rule); Allen v. State, 543 S.E.2d 45 (Ga. Ct. App. 2000) (requiring the admission of impeachment materials against statements that fall into the medical diagnosis exception to the hearsay rule).
-
Smith v. State, 510 S.E.2d 1, 7-8 (Ga. 1998) (allowing impeachment of statements admitted under the dying declaration and excited utterance exceptions to the hearsay rule); Allen v. State, 543 S.E.2d 45 (Ga. Ct. App. 2000) (requiring the admission of impeachment materials against statements that fall into the medical diagnosis exception to the hearsay rule).
-
-
-
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183
-
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45149130093
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State v. Estrella, 893 A.2d 348 (Conn. 2006).
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State v. Estrella, 893 A.2d 348 (Conn. 2006).
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-
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184
-
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45149125508
-
-
Id. at 360
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Id. at 360.
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-
-
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185
-
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45149094165
-
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Id. at 360-61
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Id. at 360-61.
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-
-
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186
-
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45149091999
-
-
See, e.g., Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141 (1997) (We have held that abuse of discretion is the proper standard of review of a district court's evidentiary rulings.); Old Chief v. United States, 519 U.S. 172, 174 n.1 (1997); State v. Thang, 41 P.3d 1159, 1165 (Wash. 2002).
-
See, e.g., Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141 (1997) ("We have held that abuse of discretion is the proper standard of review of a district court's evidentiary rulings."); Old Chief v. United States, 519 U.S. 172, 174 n.1 (1997); State v. Thang, 41 P.3d 1159, 1165 (Wash. 2002).
-
-
-
-
187
-
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45149083512
-
-
Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 431 (2001) (concluding that the constitutional issue merits de novo review); United States v. Brown, 364 F.3d 1266, 1268 (11th Cir. 2004) (We review questions of constitutional law de novo.). Incidentally, this distinction sometimes leads to confusion when courts address evidentiary questions of constitutional magnitude. See Cassandra H. Welch, Note, Flexible Standards, Deferential Review: Daubert's Legacy of Confusion, 29 HARV. J.L. & PUB. POL'Y 1085, 1101 (2006) (discussing the different standards courts have applied when admitting expert testimony in light of Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993)).
-
Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 431 (2001) (concluding that the "constitutional issue merits de novo review"); United States v. Brown, 364 F.3d 1266, 1268 (11th Cir. 2004) ("We review questions of constitutional law de novo."). Incidentally, this distinction sometimes leads to confusion when courts address evidentiary questions of constitutional magnitude. See Cassandra H. Welch, Note, Flexible Standards, Deferential Review: Daubert's Legacy of Confusion, 29 HARV. J.L. & PUB. POL'Y 1085, 1101 (2006) (discussing the different standards courts have applied when admitting expert testimony in light of Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993)).
-
-
-
-
188
-
-
45149096993
-
-
Idaho v. Wright, 497 U.S. 805, 827 (1990) (stating, in dictum, that the Confrontation Clause error in this case was not harmless beyond a reasonable doubt); Chapman v. California, 386 U.S. 18, 23 (1967) ([B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.); United States v. Jones, 766 F.2d 412, 414 (9th Cir. 1985) (Violations of the confrontation clause require reversal unless they are harmless beyond a reasonable doubt.), abrogated on other grounds by Hilao v. Estate of Marcos, 103 F.3d 767 (9th Cir. 1996).
-
Idaho v. Wright, 497 U.S. 805, 827 (1990) (stating, in dictum, that "the Confrontation Clause error in this case was not harmless beyond a reasonable doubt"); Chapman v. California, 386 U.S. 18, 23 (1967) ("[B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt."); United States v. Jones, 766 F.2d 412, 414 (9th Cir. 1985) ("Violations of the confrontation clause require reversal unless they are harmless beyond a reasonable doubt."), abrogated on other grounds by Hilao v. Estate of Marcos, 103 F.3d 767 (9th Cir. 1996).
-
-
-
-
189
-
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45149105155
-
-
United States v. Lane, 474 U.S. 438, 446 n.9 (1986) ([H]armless- error analysis adopted in Chapman concerning constitutional errors is considerably more onerous than the standard for nonconstitutional errors . . . .); Moore v. United States, 429 U.S. 20, 23 (1976) (remanding to determine whether wrongful admission of hearsay evidence was harmless error); United States v. D.L., 453 F.3d 1115, 1134 (9th Cir. 2006) (For nonconstitutional error, we apply a less stringent standard.).
-
United States v. Lane, 474 U.S. 438, 446 n.9 (1986) ("[H]armless- error analysis adopted in Chapman concerning constitutional errors is considerably more onerous than the standard for nonconstitutional errors . . . ."); Moore v. United States, 429 U.S. 20, 23 (1976) (remanding to determine whether wrongful admission of hearsay evidence was harmless error); United States v. D.L., 453 F.3d 1115, 1134 (9th Cir. 2006) ("For nonconstitutional error, we apply a less stringent standard.").
-
-
-
-
190
-
-
45149125236
-
-
Cf. Gen. Elec. Co., 522 U.S. at 143 (noting that deference is the hallmark of abuse-of-discretion review and overturning a lower court that failed to afford such deference).
-
Cf. Gen. Elec. Co., 522 U.S. at 143 (noting that deference is "the hallmark of abuse-of-discretion review" and overturning a lower court that failed to afford such deference).
-
-
-
-
191
-
-
45149117834
-
-
United States v. Inadi, 475 U.S. 387, 410 (1986); see cases cited supra note 143 and accompanying text.
-
United States v. Inadi, 475 U.S. 387, 410 (1986); see cases cited supra note 143 and accompanying text.
-
-
-
-
192
-
-
45149086493
-
-
Modesitt v. State, 578 N.E.2d 649, 651 (Ind. 1991); cf. State v. Furlough, 797 S.W.2d 631, 646 (Tenn. Ct. App. 1990) (Only sworn testimony in court subject to immediate cross-examination escapes the hearsay stigma.).
-
Modesitt v. State, 578 N.E.2d 649, 651 (Ind. 1991); cf. State v. Furlough, 797 S.W.2d 631, 646 (Tenn. Ct. App. 1990) ("Only sworn testimony in court subject to immediate cross-examination escapes the hearsay stigma.").
-
-
-
-
193
-
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45149120675
-
-
Cf. State v. Stever, 732 P.2d 853, 859 (Mont. 1987) (We therefore hold that satisfaction of the requirements of Rule 801(d)(2)(E) [the co-conspirator hearsay exception] does not ipso facto satisfy the right of confrontation. Rather we require a separate confrontation clause analysis designed to guarantee the reliability of the challenged coconspirator statements.).
-
Cf. State v. Stever, 732 P.2d 853, 859 (Mont. 1987) ("We therefore hold that satisfaction of the requirements of Rule 801(d)(2)(E) [the co-conspirator hearsay exception] does not ipso facto satisfy the right of confrontation. Rather we require a separate confrontation clause analysis designed to guarantee the reliability of the challenged coconspirator statements.").
-
-
-
-
194
-
-
45149134933
-
-
Ohio v. Roberts, 448 U.S. 56, 66 (1980).
-
Ohio v. Roberts, 448 U.S. 56, 66 (1980).
-
-
-
-
195
-
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45149119018
-
-
See supra notes 142-44.
-
See supra notes 142-44.
-
-
-
-
196
-
-
45149133883
-
-
See Whitney Baugh, Note, Why the Sky Didn't Fall: Using Judicial Creativity to Circumvent Crawford v. Washington, 38 LOY. L.A. L. REV. 1835 (2005). Indeed, in the scores of cases I read applying the reliability test post-Crawford, I identified only one case, Flores v. State, 120 P.3d 1170 (Nev. 2005), in which an appellate court reversed a lower court on the particularized guarantees prong - and that was because the lower court improperly considered corroborating factors.
-
See Whitney Baugh, Note, Why the Sky Didn't Fall: Using Judicial Creativity to Circumvent Crawford v. Washington, 38 LOY. L.A. L. REV. 1835 (2005). Indeed, in the scores of cases I read applying the reliability test post-Crawford, I identified only one case, Flores v. State, 120 P.3d 1170 (Nev. 2005), in which an appellate court reversed a lower court on the "particularized guarantees" prong - and that was because the lower court improperly considered corroborating factors.
-
-
-
-
197
-
-
45149096441
-
-
Idaho v. Wright, 497 U.S. 805, 817 (1990) (We note at the outset that Idaho's residual hearsay exception . . . is not a firmly rooted hearsay exception for Confrontation Clause purposes.).
-
Idaho v. Wright, 497 U.S. 805, 817 (1990) ("We note at the outset that Idaho's residual hearsay exception . . . is not a firmly rooted hearsay exception for Confrontation Clause purposes.").
-
-
-
-
198
-
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32944464385
-
-
For discussion of Crawford's impact on these areas, see Geetanjli Malhotra, Resolving the Ambiguity Behind the Bright-Line Rule: The Effect of Crawford v. Washington on the Admissibility of 911 Calls in Evidence-Based Domestic Violence Prosecutions, 2006 U. ILL. L. REV. 205;
-
For discussion of Crawford's impact on these areas, see Geetanjli Malhotra, Resolving the Ambiguity Behind the Bright-Line Rule: The Effect of Crawford v. Washington on the Admissibility of 911 Calls in Evidence-Based Domestic Violence Prosecutions, 2006 U. ILL. L. REV. 205;
-
-
-
-
199
-
-
45149129569
-
-
Myrna Raeder, Remember the Ladies and the Children Too: Crawford's Impact on Domestic Violence and Child Abuse Cases, 71 BROOK. L. REV. 311 (2005);
-
Myrna Raeder, Remember the Ladies and the Children Too: Crawford's Impact on Domestic Violence and Child Abuse Cases, 71 BROOK. L. REV. 311 (2005);
-
-
-
-
200
-
-
33644691172
-
-
Jeanine Percival, Note, The Price of Silence: The Prosecution of Domestic Violence Cases in Light of Crawford v. Washington, 79 S. CAL. L. REV. 213 (2005);
-
Jeanine Percival, Note, The Price of Silence: The Prosecution of Domestic Violence Cases in Light of Crawford v. Washington, 79 S. CAL. L. REV. 213 (2005);
-
-
-
-
201
-
-
45149114694
-
Student Work, Child's Play: Avoiding the Pitfalls of Crawford v. Washington in Child Abuse Prosecution, 108 W
-
Matthew M. Staab, Student Work, Child's Play: Avoiding the Pitfalls of Crawford v. Washington in Child Abuse Prosecution, 108 W. VA. L. REV. 501 (2005).
-
(2005)
VA. L. REV
, vol.501
-
-
Staab, M.M.1
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202
-
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45149112646
-
-
There is case law that certainly comes close. See Davis v. Alaska, 415 U.S. 308, 317 (1974) (noting that the defense counsel sought to show the existence of possible bias and prejudice during cross-examination and explaining that [a] partiality of mind at some former time may be used as the basis of an argument to the same state at the time of testifying; though the ultimate object is to establish partiality at the time of testifying (quoting 3A WIGMORE, supra note 142, § 940, at 776)).
-
There is case law that certainly comes close. See Davis v. Alaska, 415 U.S. 308, 317 (1974) (noting that the "defense counsel sought to show the existence of possible bias and prejudice" during cross-examination and explaining that "[a] partiality of mind at some former time may be used as the basis of an argument to the same state at the time of testifying; though the ultimate object is to establish partiality at the time of testifying" (quoting 3A WIGMORE, supra note 142, § 940, at 776)).
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-
-
-
204
-
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45149130811
-
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Drew, supra note 2
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Drew, supra note 2.
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|