Hearsay's last Hurrah

Supreme Court Review

Volumn 2009, Issue , 2009, Pages 1-82

  Sklansky, David Alan ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 80055064066     PISSN: 00819557     EISSN: None     Source Type: Book Series    
DOI: 10.1086/653643     Document Type: Review

References (462)

1. See, for example, Eleanor Swift, A Foundation Fact Approach to Hearsay, 75Cal L Rev 1339 (1987)
2. Gordon Van Kessel, Hearsay Hazards in the American Criminal Trial: An Adversary-Oriented Approach, 49 Hastings L J 477 (1998) (Pubitemid 128426657)
3. Michael L. Siegel, Rationalizing Hearsay: A Proposal for a Best Evidence Hearsay Rule, 72 BU L Rev 893 (1992).
4. See, for example, Frederick Schauer, On the Supposed Jury-Dependence of Evidence Law, 155 U Pa L Rev 165, 194-95 (2006).
5. See, for example, Ronald J. Allen, The Evolution of the Hearsay Rule to a Rule of Admission, 76 Minn L Rev 797 (1992)
6. Richard O. Lempert, Anglo-American and Continental Systems: Marsupials and Mammals of the Law, in John Jackson, Máximo Langer, and Peter Tillers, eds, Crime, Procedure and Evidence in a Comparative and International Context: Essays in Honor of Professor Mirjan Damaška 395, 402 (Hart, 2008)
7. Siegel, 72 BU L Rev at 894 (cited in note 1) (noting the widespread belief "that, despite the irrational nature of hearsay law, most judges use the current rule of exclusion and its myriad exceptions to admit reliable evidence, to exclude unreliable evidence, and to achieve 'rough justice' in the majority of cases").
8. See Criminal Justice Act, 2003, c 44, § 116 (UK)
9. Criminal Justice (Scotland) Act, 1995, c 20, § 17 (UK).
10. See text accompanying notes 131-40.
11. See, for example, Richard D. Friedman, The Confrontation Right Across the Systemic Divide, in Jackson, Langer, and Tillers, eds, Crime, Procedure and Evidence at 261, 265 (cited in note 3)
12. Allen, 76 Minn L Rev at 797 (cited in note 3).
13. See, for example, Stefano Maffei, The European Right to Confrontation in Criminal Proceedings: Absent, Anonymous and Vulnerable Witnesses (Europa, 2006)
14. Stefan Trechsel, Human Rights in Criminal Proceedings 291-326 (Oxford, 2005).
15. See, for example, Friedman, Confrontation Right Across the Systemic Divide at 268 (cited in note 6). As developed by the European Court of Human Rights, the right to confrontation also operates as a rule of sufficiency, disallowing convictions based "solely or decisively" on government depositions of absent witnesses; this aspect of the rule is currently under challenge. See text accompanying notes 173-74.
16. See, for example, Mirjan Damaška, Of Hearsay and Its Analogues, 76 Minn L Rev 425, 457 (1992).
17. US Const, Amend VI.
18. Dutton v Evans, 400 US 74, 86 (1970) (plurality).
19. Ohio v Roberts, 448 US 56, 66 (1980).
20. See, for example, Akhil Reed Amar, The Constitution and Criminal Procedure: First Principles 129 (Yale, 1997)
21. Joshua C. Dickinson, The Confrontation Clause and the Hearsay Rule: The Current State of a Failed Marriage in Need of a Quick Divorce, 33 Creighton L Rev 763 (2000)
22. Randolph N. Jonakait, Restoring the Confrontation Clause to the Sixth Amendment, 35 UCLA L Rev 557, 558 (1988)
23. Richard D. Friedman, The Confrontation Clause Re-Rooted and Transformed, 2004 Cato Sup Ct Rev 439, 448.
24. See, for example, Lilly v Virginia, 527 US 116, 140-43 (1999) (Breyer, J, concurring) (taking sympathetic notice).
25. 541 US 36 (2004).
26. 547 US 813, 824 (2006).
27. 128 S Ct 2678 (2008).
28. 129 S Ct 2527 (2009).
29. There was speculation the Court might reconsider Melendez- Diaz when it granted review in Briscoe v Virginia, 78 USLW3434 (US 2010).
30. After briefing and argument, though, the Court released a one-sentence, per curiam opinion, vacating and remanding "for further proceedings not inconsistent with the opinion in Melendez-Diaz." Id. The next significant elaboration of the Crawford doctrine will likely come when the Court decides Michigan v Bryant, No 09-150, 78 USLW3082 (US, cert granted March 1, 2010). See note 218.
31. Friedman, Confrontation Right Across the Systemic Divide at 266 (cited in note 6).
32. See, for example, Robert P. Mosteller, Confrontation as Constitutional Criminal Procedure: Crawford's Birth Did Not Require That Roberts Had to Die, 15J L & Pol 685 (2007)
33. Roger C. Park, Is Confrontation the Bottom Line? 19 Regent U L Rev 459 (2007).
34. See, for example, Thomas Y. Davies, What Did the Framers Know, and When Did They Know It? Fictional Originalism in Crawford v. Washington, 71 Brooklyn L Rev 105(2005)
35. 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, 15J L & Pol 349 (2007)
36. Tom Harbison, Crawford v. Washington and Davis v. Washington's Originalism: Historical Arguments Showing Child Abuse Victims' Statements to Physicians are Nontestimonial and Admissible as an Exception to the Confrontation Clause, 58 Mercer L Rev 569 (2007).
37. Thomas J. Reed, Crawford v. Washington and the Irretrievable Breakdown of a Union: Separating the Confrontation Clause from the Hearsay Rule, 56 SC L Rev 185 (2004)
38. see also Amar, Constitution and Criminal Procedure at 129 (cited in note 13) (criticizing, before Crawford, "the Court's shotgun wedding of the hearsay rule and the confrontation clause")
39. Anthony Bocchino and David Sonenshein, Rule 804(b)(b)-The Illegitimate Child of the Failed Liaison Between the Hearsay Rule and Confrontation Clause, 73 Mo L Rev 41 (2008)
40. Andrew King-Ries, An Argument for Original Intent: Restoring Rule 801(d)(1)(A) to Protect Domestic Violence Victims in a Post-Crawford World, 27 Pace L Rev 199, 200 (2007)
41. Roger W. Kirst, A Decade of Change in Sixth Amendment Confrontation Doctrine, 6 Intl Commentary on Evidence, issue 2, art 5, at 21 (2009)
42. Robert P. Mosteller, Evidence History, the New Trace Evidence, and Rumblings in the Future of Proof, 3 Ohio St J Crim L 523, 529-30 (2006)
43. Deborah Turkheimer, Crawford's Triangle: Domestic Violence and the Right of Confrontation, 85NC L Rev 1, 36-37 (2006)
44. John Robert Knoebber, Comment, Say That to My Face: Applying an Objective Approach to Determine the Meaning of Testimony in Light of Crawford v. Washington, 51 Loyola L Rev 497, 503-15 (2006).
45. Friedman, Confrontation Right Across the Systemic Divide at 265(cit ed in note 6).
46. See Wharton v Bockting, 549 US 406, 420 (2007)
47. Davis v Washington, 547 US 813, 824 (2006).
48. See, for example, Julius Goebel Jr. and T. Raymond Naughton, Law Enforcement in Colonial New York 642 (Commonwealth Fund, 1944)
49. T. P. Gallanis, The Rise of Modern Evidence Law, 84 Iowa L Rev 499, 502, 534 (1999).
50. See, for example, Charles Alan Wright and Kenneth W. Graham, 30 Federal Practice and Procedure § 6344 at 393-94 (West, 1997).
51. Amar, Constitution and Criminal Procedure at 44 (cited in note 13).
52. See Coy v Maryland, 487 US 1012 (1988)
53. but consider Maryland v Craig, 497 US 836 (1990) (making clear that the right to a face-to-face meeting is not absolute).
54. See Davis v Alaska, 415US 308 (1974).
55. See, for example, Mirjan Damaška, Evidence Law Adrift 144-47 (Yale, 1996).
56. Daniel H. Pollitt, The Right of Confrontation: Its History and Modern Dress, 8 J Pub L 381, 402 (1959).
57. See David A. Sklansky and Stephen C. Yeazell, Comparative LawWithout Leaving Home: What Civil Procedure Can Teach Criminal Procedure, and Vice Versa, 94 Georgetown L J 683, 728-33 (2006).
58. See, for example, Cabinet for Health & Family Services v A.G.G., 190 SW3d 338 (Ky 2006) (termination of parental rights); In re T.W., 139 P3d 810 (Mont 2006) (same); In re Commitment of Polk, 187 SW3d 550, 555-56 (Tex App 2006) (civil commitment).
59. John Henry Wigmore, 2 A Treatise on the System of Evidence in Trials at Common Law § 1365at 1695(Little Brown, 1904).
60. Peter Murphy, Evidence and Advocacy 24 (Oxford, 5th ed 2002).
61. US Const, Amend VI.
62. See, for example, FRE 801(c).
63. See, for example, United States v Saavedra, 684 F2d 1293, 1297-98 (9th Cir 1982).
64. In the 1800s and early 1900s, courts often exempted out-of-court utterances from the hearsay ban on the ground that they were part of the res gestae-the "things done." This phrase was applied not only to statements that were themselves part of the alleged crime or tort (because they were fraudulent, defamatory, or otherwise transgressive) but also to utterances that were essentially "verbal acts" rather than assertions (such as, "You're fired," or "I'm giving this to you."). The res gestae label was attached, as well, to assertions that fell within certain common-law exceptions to the hearsay rule, including the exceptions for "excited utterances" and "present sense impressions." See, for example, Black's Law Dictionary 1335(W est, 8th ed 2004) (Bryan A. Garner, ed)
65. United States v Elem, 845F2d 170, 173-74 (8th Cir 1988). Wigmore and other early twentieth-century commentators hated the vagueness of the term and urged its abandonment.
66. See, for example, Judson F. Falknor, Book Review, 33 Tex L Rev 977, 982 (1955).
67. None of the modern evidence codes employ the phrase, and it has largely-although not entirely-passed out of usage. See Chris Blair, Let's Say Goodbye to Res Gestae, 33 Tulsa L J 349 (1997).
68. FRE 801(d) & 802-04.
69. FRE 801(d)(2).
70. FRE 804(b)(2).
71. FRE 803(6).
72. Allen, 76 Minn L Rev at 800 (cited in note 3).
73. Ronald J. Allen and George N. Alexakis, Utility and Truth in the Scholarship of Mirjan Damaška, in Jackson et al, eds, Crime, Procedure and Evidence at 327, 343 (cited in note 3).
74. See Eleanor Swift, The Hearsay Rule at Work: Has It Been Abolished De Facto by Judicial Decision? 76 Minn L Rev 473 (1992)
75. Eleanor Swift, Narrative Theory, FRE803(3), and Criminal Defendants' Post-Crime State of Mind Hearsay, 38 Seton Hall L Rev 975(2008).
76. People v Simpson, No BA097211, 1995WL 21768, *4-5 (Cal Super, Jan 18, 1995). The same statements were ruled admissible in a subsequent civil trial of wrongful death claims brought against Simpson; the judge in the civil trial reasoned that the statements were relevant to Nicole Brown Simpson's "state or mind" shortly before she was killed.
77. See Gerald F. Uelmen, The O. J. Files: Evidentiary Issues in a Tactical Context 104 (West, 1998).
78. For an earlier, equally notorious example, see F. Tennyson Jesse, The Trial of Madeleine Smith (Hodge, 1927). Madeleine Smith was unsuccessfully prosecuted in Edinburgh in 1857 for the murder of her former lover, Emile L'Angelier, who died from arsenic poisoning. The trial court excluded, on hearsay grounds, a diary in which L'Angelier recorded that he visited with Smith just before he took ill; as a result, no evidence was presented that the two had any contact in the critical period. The jury returned a verdict of "not proven." See id at 32, 35.
79. See text accompanying notes 141-43.
80. Cal Evid Code § 1370(a).
81. People v Giles, 2009 WL 457832, at *2 (Cal Super, Feb 25, 2009).
82. Giles v California, 128 S Ct 2678 (2008). The Court reasoned that the Confrontation Clause would allow the introduction of Avie's statements against Giles only if the trial court determined that Giles had killed Avie in order to prevent her from testifying and remanded to allow the California courts to address that question. See id at 2693; notes 219-23 and accompanying text.
83. See Tom Kertscher, Jensen Guilty of Homicide, Milwaukee J Sentinel (Feb 22, 2008), at A1.
84. State v Jensen, 727 NW2d 518, 521 (Wisc 2007).
85. See Tom Kertscher, Poison Case May Be Retried, Milwaukee J Sentinel (June 26, 2008), at B1.
86. For the canonical account, see, for example, Kenneth S. Broun et al, McCormick on Evidence § 245at 125 (West, 6th ed 2006)
87. Edmund Morris Morgan, Some Problems of Proof Under the Anglo-American System of Litigation 119-27 (Columbia, 1956)
88. Wright and Graham, 30 Federal Practice and Procedure §§ 1623-27 (cited in note 26).
89. Wigmore, 2 Treatise on the System of Evidence § 1367, at 1697 (cited in note 34).
90. See, for example, Laurence H. Tribe, Triangulating Hearsay, 87 Harv L Rev 957, 961-69 (1974).
91. For entertaining examples, see Robert M. Hutchins and Donald Slesinger, Some Observations on the Law of Evidence, 28 Colum L Rev 432, 437-39 (1928) (ridiculing the arguments for the "excited utterance" exception to the hearsay rule)
92. Joseph H. Levie, Hearsay and Conspiracy, 52 Mich L Rev 1159, 1161-66 (1954) (same for the "co-conspirator admissions" exception).
93. See, for example, John L. Watts, To Tell the Truth: A Qui Tam Action for Perjury in Civil Proceedings Is Necessary to Protect the Integrity of the Civil Judicial System, 79 Temple L Rev 773, 774-75(2006).
94. See Jeremy A. Blumenthal, A Wipe of the Hands, a Lick of the Lips: The Validity of Demeanor Evidence in Assessing Witness Credibility, 72 Neb L Rev 1157, 1190-94 (1993)
95. Max Minzner, Detecting Lies Using Demeanor, Bias, and Context, 29 Cardozo L Rev 2557, 2559-66 (2008)
96. Olin Guy Wellborn III, Demeanor, 76 Cornell L Rev 1075(1991).
97. See, for example, John H. Langbein, The Origins of Adversary Criminal Trial 246-47 (Oxford, 2003). Even Wigmore, who extolled cross-examination as "the most efficacious expedient ever invented for the extraction of truth," acknowledged parenthetically that "it is almost equally powerful for the creation of false impressions." Wigmore, 1 Treatise on the System of Evidence § 8 at 25(cit ed in note 34).
98. Jules Epstein, Cross-Examination: Seemingly Ubiquitous, Purportedly Omnipotent, and "At Risk," 14 Widener L Rev 429, 440-41 (2009).
99. See, for example, FRE 401-03.
100. See Friedman, Confrontation Right Across the Systemic Divide at 264 (cited in note 6)
101. Peter Miene, Roger C. Park, and Eugene Borgida, Juror Decision Making and the Evaluation of Hearsay Evidence, 76 Minn L Rev 683 (1992)
102. Richard F. Rakos and Stephan Landsman, Researching the Hearsay Rule: Emerging Findings, General Issues, and Future Directions, 76 Minn L Rev 655, 664 (1992)
103. Roger C. Park, Visions of Applying the Scientific Method to the Hearsay Rule, 2003 Mich St L Rev 1149
104. consider Margaret Bull Kovera, Roger C. Park, and Stephen D. Penrod, Jurors' Perceptions of Eyewitness and Hearsay Evidence, 76 Minn L Rev 703, 703 (1992) (reporting that "mock jurors are more skeptical of hearsay testimony than eyewitness testimony").
105. See, for example, Edward Connors et al, Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial 15-20 (Natl Inst J, 1996)
106. Brandon L. Garrett, Judging Innocence, 108 Colum L Rev 55, 122 (2008)
107. Samuel R. Gross et al, Exonerations in the United States 1989 Through 2003, 95 J Crim L & Criminol 523 (2005).
108. A false confession introduced against the defendant who made it qualifies, technically, as hearsay, but the hearsay rule will never keep it out; it falls squarely within the "admissions exception." See, for example, FRE 801(d)(2); text accompanying note 41.
109. See, for example, Damaška, 76 Minn L Rev at 458 (cited in note 9).
110. A rigid hearsay rule, despite its over- and underinclusiveness, might plausibly produce better results than letting all-too-human judges decide case by case whether excluding an out-of-court statement will produce more benefits than costs. See Schauer, 155 U Pa L Rev at 195-97 (cited in note 2). But that is an argument for having a rule, not for having a rule that operates even when witnesses are unavailable and even when they actually testify.
111. See Eleanor Swift, Abolishing the Hearsay Rule, 75 Cal L Rev 495(1987).
112. See FRE 803(6).
113. See Swift, 75 Cal L Rev (cited in note 1).
114. John Henry Wigmore, A Supplement to a Treatise on the System of Evidence in Trials at Common Law xxix (Little Brown, 2d ed 1915).
115. Id. Nonetheless, Wigmore continued to classify hearsay as an "analytic" rule rather than a "preferential," "prophylactic," "simplificative," or "synthetic" rule. John Henry Wigmore, 1 Treatise on the Anglo-American System of Evidence in Trials at Common Law xliii, lxxxv (Little Brown, 2d ed 1923). By an "analytic rule,"Wigmore meant a rule that subjects evidence "to a scrutiny or analysis calculated to discover and expose in detail its possible weaknesses, and thus to enable the tribunal to estimate it at no more than its actual value." Id 2 § 1360 at 1.Wigmore thought hearsay was the only rule of this kind, and the "scrutiny or analysis" he had in mind consisted of "Cross-examination and Confrontation." Id. Crossexamination, he thought, was "the essential and indispensable feature"; confrontation was "subordinate and disposable." Id § 1362 at 3.
116. American Law Institute, Model Code of Evidence Rule 503 (1942).
117. John MacArthur Maguire, Evidence: Common Sense and Common Law 153 (Foundation, 1947).
118. See, for example, James H. Chadbourn, Bentham and the Hearsay Rule-A Benthamic View of Rule 63(4)(C) of the Uniform Rules of Evidence, 75Harv L Rev 932, 945(1962).
119. See, for example, Wright and Graham, 30 Federal Practice and Procedure § 6336 at 126-27 (cited in note 26)
120. John H. Maguire, The Hearsay System: Around and Through the Thicket, 14 Vand L Rev 741, 741 (1961).
121. See, for example, Michael Ariens, A Short History of Hearsay Reform, with Particular Reference to Hoffman v. Palmer, Eddie Morgan and Jerry Frank, 28 Ind L Rev 183, 223-25 (1995).
122. See, for example, George F. James, The Role of Hearsay in a Rational System of Evidence, 34 Ill L Rev 788, 797-98 (1940)
123. Dale A. Nance, The Best Evidence Principle, 73 Iowa L Rev 227 (1988)
124. Siegel, 72 BU L Rev 893 (cited in note 1).
125. See, for example, John H. Langbein, Historical Foundations of the Law of Evidence: A View from the Ryder Sources, 96 Colum L Rev 1168, 1173 (1996)
126. Nance, 73 Iowa L Rev at 248 (cited in note 82) (citing sources).
127. James, 34 Ill L Rev at 796 (cited in note 82).
128. James Bradley Thayer, A Preliminary Treatise on Evidence at the Common Law 264-66, 484-507 (Little Brown, 1898).
129. Regarding Thayer's influence, see Nance, 73 Iowa L Rev at 248 (cited in note 82)
130. David A. Sklansky, Proposition 187 and the Ghost of James Bradley Thayer, 17 Chicano-Latino L Rev 24, 24-25(1995 ).
131. See, for example, FRE 1001-1002
132. United States v Gonzales-Benitez, 537 F2d 1051 (9th Cir 1976). But see Nance, 73 Iowa L Rev at 227 (cited in note 82) (arguing, "against the tide," that "there exists, even today, a principle of evidence law that a party should present to the tribunal the best evidence reasonably available on a litigated factual issue"). 87 Simon Greenleaf, 1 A Treatise on the Law of Evidence § 98 (Little Brown, 1842). Thayer, too, thought the basic problem with hearsay was that "something which should come through an original witness is sought to be put in at second hand," effectively "nullify[ing] the requirement that witnesses should personally appear and testify publicly in court." Thayer, Preliminary Treatise on Evidence at 501 (cited in note 85).
133. Greenleaf, 1 Treatise on the Law of Evidence § 99 (cited in note 87).
134. 11 US (7 Cranch) 290 (1813). For brief discussions of the case, see Wright and Graham, 30 Federal Practice and Procedure § 6321 at 18 (cited in note 26)
135. Robert M. Cover, For James Wm. Moore: Some Reflections on a Reading of the Rules, 84 Yale L J 718, 725-26 (1975)
136. Jason M. Gillmer, Suing for Freedom: Interracial Sex, Slave Law, and Racial Identity in the Post-Revolutionary and Antebellum South, 82 NC L Rev 535, 584-85 (2004)
137. Donald M. Roper, In Quest of Judicial Objectivity: The Marshall Court and the Legitimation of Slavery, 21 Stan L Rev 532, 533 (1969).
138. 11 US at 293-95.
139. See William L. Reynolds, Maryland and the Constitution of the United States: An Introductory Essay, 66 Md L Rev 923, 931-32 (2007)
140. Norman R.Williams, Gibbons, 79 NYU L Rev 1398, 1425n 148 (2004).
141. See Davis v Wood, 14 US (1 Wheat) 6 (1816)
142. Gillmer, 82 NC L Rev at 585-86 (cited in note 89).
143. See, for example, Morgan, Some Problems of Proof at 111-12 (cited in note 57).
144. The case is still cited for this proposition. See, for example, United States v Florex, 985F2 d 770, 778 (5th Cir 1993)
145. United States v Gomez-Lemos, 939 F2d 326, 333 n 2 (6th Cir 1991)
146. Valmain v State, 2009 WL 863471, *7 (Miss 2009) (Kitchens dissenting)
147. Garza v Delta Tau Delta Fraternity National, 948 So2d 84, 91 (La 2006).
148. Thayer, Preliminary Treatise on Evidence at 501 (cited in note 85).
149. 98Wigmore, 2 Treatise on the System of Evidence § 1530 at 1895-96 (cited in note 34)
150. 7 Adolph & E 313, 112 Eng Rep 488 (Ex Ch 1837), and 5Cl & Fin 670, 47 Rev Rep 136 (HL 1838).
151. Friedman, Confrontation Right Across the Systemic Divide at 263 (cited in note 6).
152. The best account of the case remains Maguire, 14 Vand L Rev at 749-60 (cited in 80). The disputed evidence consisted of letters sent to the testator and addressing him in a manner that suggested that the letter writers thought he was mentally competent. One letter, for example, discussed the settlement of a legal dispute with the testator. The English courts treated the letters as "implied assertions" of the testator's competence and reasoned that the hearsay rule should apply to implied assertions as well as explicit assertions. The weight of authority is now to the contrary, on both sides of the Atlantic: the hearsay rule is generally restricted to statements (verbal or otherwise) that are offered into evidence to prove the facts they were intended to communicate.
153. See, for example, FRE 801(a), (c) & Advisory Committee Note; Criminal Justice Act, 2003, c 44, § 115(3) (UK); United States v Zenni, 492 F Supp 464 (ED Ky 1980). But consider, for example, State v Dullard, 668 NW2d 585, 595 (Iowa 2003) (noting and adopting minority position that "unintentional assertions in speech" should be treated as hearsay).
154. 145US 285 (1892).
155. See Brooks W. MacCracken, The Case of the Anonymous Corpse, Am Heritage ( June 1968), at 51
156. John MacArthur Maguire, The Hillmon Case-Thirty-Three Years After, 38 Harv L Rev 709 (1925).
157. For an extended, fascinating argument that the insurance companies, rather than the claimant, may have been guilty of fraud, see Marianne Wesson, The Hillmon Case, the Supreme Court, and the McGuffin, in Richard Lempert, ed, Evidence Stories 277 (Foundation, 2006).
158. See John Henry Wigmore, The History of the Hearsay Rule, 17 Harv L Rev 437, 445, 448 (1904).
159. Wigmore incorporated this article into his treatise, the first edition of which appeared two years later. See Wigmore, 2 Treatise on the System of Evidence § 1364 (cited in note 34).
160. See Wigmore, 17 Harv L Rev at 443, 451-52, 454-58 (cited in note 104). Wigmore thus located the origins of the hearsay rule about a century before the emergence of modern evidence law as a "consciously and fully realized" system of rules; that happened, he thought, between 1790 and 1830. See Wigmore, 1 Treatise on the System of Evidence § 8 at 26-27 (cited in note 34).
161. See notes 74-75and accompanying text.
162. See, for example, Wigmore, 17 Harv L Rev at 452-53 (cited in note 104).
163. Wigmore, Supplement at xxviii-xxix (cited in note 74).
164. Id at xxviii. Wigmore is often said to have attributed the rise of the hearsay rule to distrust of lay juries. See, for example, Gallanis, 84 Iowa L Rev at 501 (cited in note 25)
165. Frederick W. J. Koch, The Hearsay Rule's True Raison D'Etre: Its Implications for the New Principled Approach to Admitting Hearsay Evidence, 37 Ottawa L Rev 249, 252 (2005-06). It is true that Wigmore's teacher, James Bradley Thayer, saw the jury as "the occasion of our law of evidence"; the whole point of the rules, he thought, was to prevent jurors "from being confused and misled."
166. Thayer, Preliminary Treatise on Evidence at 2, 3 (cited in note 85). It is true, as well, that Wigmore acknowledged his debt to Thayer's treatment of evidence law as "directly appurtenant to jury trial."
167. Wigmore, 1 Treatise on the System of Evidence at xii (cited in note 34).
168. But Wigmore in fact placed much less emphasis than Thayer on the need to protect jurors from misleading evidence and, in particular, did not stress that theme when reviewing the history of the hearsay rule. For that matter, even Thayer's treatment of the history of the hearsay rule downplayed concerns about jurors' gullibility, instead highlighting "the necessity of discriminating the office of a witness from that of a juror." Thayer, Preliminary Treatise on Evidence at 500 (cited in note 85). The central impetus for the rule's development, Thayer explained, was that "repeating hearsay was not regarded as legitimate testifying." Id at 499.
169. See Wigmore, 17 Harv L Rev at 45(cit ed in note 104).
170. See Langbein, Origins of Adversary Criminal Trial at 234, 238-42 (cited in note 63)
171. Friedman, Confrontation Right Across the Systemic Divide at 263 (cited in note 6)
172. Gallanis, 84 Iowa L Rev at 512-15, 535-36 (cited in note 25).
173. See Langbein, Origins of Adversary Criminal Trial at 239-40 (cited in note 63)
174. Gallanis, 84 Iowa L Rev at 501 n 11, 512, 536 (cited in note 25). Langbein and Gallanis focus on English trials, but the same laxity was found on this side of the Atlantic.
175. See, for example, Goebel and Naughton, Law Enforcement in Colonial New York 642-43 (cited in note 25).
176. See Langbein, Origins of Adversary Criminal Trial at 238-39 (cited in note 63)
177. Goebel and Naughton, Law Enforcement in Colonial New York 651-52 (cited in note 25).
178. See Gallanis, 84 Iowa L Rev at 536 (cited in note 25).
179. Id at 535; see also Langbein, Origins of Adversary Criminal Trial at 242 (cited in note 63).
180. See Langbein, Origins of Adversary Criminal Trial at 167-77 (cited in note 63).
181. See Gallanis, 84 Iowa L Rev at 544 (cited in note 25)
182. citing John M. Beattie, Scales of Justice, 9 Law & Hist Rev 221, 227 (1991).
183. See Langbein, Origins of Adversary Criminal Trial at 171, 296-318 (cited in note 63).
184. See Gallanis, 84 Iowa L Rev at 545-46 (cited in note 25).
185. See Queen v Hepburn, 11 US (7 Cranch) 290 (1813); text accompanying notes 89-97.
186. 7 Adolph & E 313, 112 Eng Rep 488 (Ex Ch 1837), and 5Cl & Fin 670, 47 Rev Rep 136 (HL 1838); see notes 99-101 and accompanying text.
187. Friedman, Confrontation Right Across the Systemic Divide at 263 (cited in note 6).
188. See text accompanying notes 74-81.
189. See Allen, 76 Minn L Rev at 797 (cited in note 3).
190. Civil Evidence Act, 1968, c 64, § 2 (UK).
191. Civil Evidence Act, 1995, c 38, § 1 (UK).
192. Criminal Justice Act, 2003, c 44, § 116 (UK).
193. Criminal Justice (Scotland) Act, 1995, c 20, § 17 (UK).
194. Civil Evidence (Scotland) Act, 1988, c 32, § 2(1) (UK)
195. see David Field and Fiona Raitt, Evidence 180 (Green, 2d ed 1996).
196. See, for example, Bruce Archibald, The Canadian Hearsay Revolution: Is Half a Loaf Better Than No Loaf at All? 25Queen's L J 1 (1999)
197. Hamish Stewart, Khelawon: The Principled Approach to Hearsay Revisited, 12 Can Crim L Rev 95, 96-97 (2007).
198. Commonwealth Evidence Act, 1995, §§ 63, 65 (Australia).
199. The Act applies only in federal and territorial courts, but similar reforms were enacted by some state legislatures. See Marian K. Brown, Reform and Proposed Reform of Hearsay Law in Australia, New Zealand, Hong Kong, and Canada, with Special Regard to Prior Inconsistent Statements at 8 (unpublished paper presented at 2007 Annual Conference of the International Society for the Reform of Criminal Law), online at http://www.isrcl.org/Papers/2007/Brown.pdf.
200. Evidence Act, 2006, § 18 (NZ).
201. The legislation followed a series of liberalizing decisions by the New Zealand Court of Appeal. See Elizabeth McDonald, Going "Straight to Basics": The Role of Lord Cooke in Reforming the Rule Against Hearsay-From Baker to the Evidence Act 2006, 39 Vict U Wellington L Rev 143 (2008).
202. See, for example, Brown, Reform and Proposed Reform of Hearsay Law at 16-20 (cited in noted 138) (regarding Hong Kong).
203. See, for example, Andrea Dworkin, In Nicole Brown Simpson's Words, LA Times (Jan 29, 1995), at M1, M6; text accompanying notes 47-50.
204. See, for example, White v Illinois, 502 US 346 (1992)
205. United States v Joe, 8 F3d 1488 (10th Cir 1993)
206. Richard D. Friedman and Bridget McCormack, Dial-In Testimony, 150 U Pa L Rev 1171, 1173-92 (2002)
207. Tom Lininger, Evidentiary Issues in Federal Prosecutions of Violence Against Women, 36 Ind L Rev 687, 708-17 (2003)
208. Cynthia Jennings, Comment, Accommodating Child Abuse Victims: Special Hearsay Exceptions in Sexual Offense Prosecutions, 16 Ohio N U L Rev 663, 665-68, 672-77 (1989)
209. Note, The Problem of Using Hearsay in Domestic Violence Cases: Is a New Exception the Answer? 49 Duke L J 1041, 1044-58 (2000).
210. See, for example, Damaška, Evidence Law Adrift at 31 (cited in note 30) (calling this the conventional justification).
211. See text accompanying notes 114-24.
212. See note 66 and accompanying text.
213. See, for example, Damaška, Evidence Law Adrift at 31 (cited in note 30)
214. Schauer, 155U Pa L Rev 165(c ited in note 2).
215. See, for example, Damaška, Evidence Law Adrift at 46-52 (cited in note 30).
216. Damaška, 76 Minn L Rev at 427-28 (cited in note 9).
217. But see Schauer, 155 U Pa L Rev at 166-67 (cited in note 2) (noting that American trial judges frequently ignore the hearsay rule when sitting without a jury, and that some scholars have suggested this informal practice should be officially authorized).
218. Lempert, Anglo-American and Continental Systems at 402 (cited in note 3).
219. For roughly similar observations, see, for example, Allen and Alexakis, Utility and Truth at 343, 346 (cited in note 45).
220. Lempert, Anglo-American and Continental Systems at 402 (cited in note 3).
221. See Damaška, 76 Minn L Rev at 440 (cited in note 9). "Although a general approach to derivative proof [whether written or oral] can . . . be detected, submerged, in Romancanon law, a terminology limiting 'hearsay' to its oral form became habitual and survives on the Continent to the present day." Id at 439.
222. Sarah J. Summers, Fair Trials: The European Criminal Procedure Tradition and the European Court of Human Rights 47-58 (Hart, 2007). Summers suggests that the requirement that proof be presented orally is separable, strictly speaking, from the requirement that proof be presented directly to the adjudicator, but she notes that the two ideas "are frequently referred to together or interchangeably" in European discussions of criminal procedure.
223. See Summers, Fair Trials at 48.
224. Damaška, 76 Minn L Rev at 447 (cited in note 9).
225. See, for example, id; Stefano Maffei, European Right to Confrontation at 183-84 (cited in note 7) (discussing French case law); Antonio Pablo Rives Seva, El Testimonio de Referencia en la Jurisprudencia Penal, Revista Peruana de Jurisprurdencia, R196 4 no 11:LXVII-LXXIII (2002), online at http://noticias.juridicas.com/articulos/65-Derecho%20Procesal%20Penal/ 200001-testimoniojpenal.html (discussing Spanish case law).
226. Michele Panzavolta, Reforms and Counter-Reforms in the Italian Struggle for an Accusatorial Criminal Law System, 30 NC J Intl L & Comm Reg 577, 611-12 (2005)
227. see also William T. Pizzi and Mariangela Montagna, The Battle to Establish an Adversarial Trial System in Italy, 25 Mich J Intl L 429, 462 (2004).
228. European Convention for the Protection of Human Rights and Fundamental Freedoms, § I, arts 6, 3(d), Nov 4, 1950, 213 UNTS 221.
229. Id § IV; see also John D. Jackson, Transnational Faces of Justice: Two Attempts to Build Common Standards Beyond National Boundaries, in Crime, Procedure and Evidence at 221, 227 (cited in note 3)
230. Diane Marie Amann, Harmonic Convergence? Constitutional Criminal Procedure in an International Context, 75 Ind L J 810, 826-30 (2000).
231. P. S. v Germany, App No 33900/96, para 21 (Eur Ct H R, Dec 20, 2001), online at http://cmiskp.echr.coe.int/tkp197/search.asp?skinphudoc-en
232. see also Kostovski v Netherlands, App No 1145/85, 12 Eur H R Rep 434, 447, para 41 (1989).
233. For helpful overviews of the case law, see Stefan Trechsel, Human Rights in Criminal Proceedings at 291-326 (cited in note 7)
234. Roger W. Kirst, Hearsay and the Right of Confrontation in the European Court of Human Rights, 21 Quinnipiac L Rev 777 (2003)
235. Sarah J. Summers, The Right to Confrontation After Crawford v. Washington: A "Continental European" Perspective, 2 Intl Commentary on Evidence, issue 1, art 3, at 1 (2004).
236. See, for example, Friedman, Confrontation Right Across the Systemic Divide at 268-69 (cited in note 6).
237. See, for example, P. S. v Germany, para 19.
238. See Saidi v France, App No 14647/89, 17 Eur H R Rep 251, 268, para 44 (1993).
239. See P. S. v Germany.
240. See Al-Khawaja v United Kingdom, App Nos 26766/05 & 22228/06, 49 Eur H R Rep 1, 59, para 23 (2009).
241. The Supreme Court of the United Kingdom has declined to follow the decision, and the Grand Chamber of the European Court of Human Rights has agreed to review it. See Regina v Horncastle, 2 WLR 47, 53, 74, 96, 98 (2010)
242. Ian Dennis, The Right to Confront Witnesses: Meanings, Myths and Human Rights, 2010 Crim L Rev 255, 271
243. Al-Khawaja v United Kingdom, App Nos 26766/05 & 22228/06 (Eur Ct H R, Mar 8, 2010) (accepting referral to Grand Chamber), online at http://cmiskp.echr.coe.int/tkp197/view.asp?itemp1&portalphbkm& actionphtml&highlightp&sessionidp48342600&skinphudoc-pr-en.
244. Consider Ferrantelli & Santangelo v Italy, App No 19874/92, 23 Eur H R Rep 288, 309, para 52 (1996) (finding no error in introduction of accomplice's confession against defendants, in part because the confession was corroborated, and in part because "the judicial authorities . . . cannot be held responsible for" the accomplice's death before the defendants' trial).
245. Portions of the following discussion expand on David Alan Sklansky, Anti-Inquisitorialism, 122 Harv L Rev 1634, 1643-52 (2009).
246. See, for example Dutton v Evans, 400 US 74, 95(1970) (Harlan, J, concurring in the result) (suggesting that "[i]f one were to translate the Confrontation Clause into language in more common use today, it would read: 'In all criminal prosecutions, the accused shall enjoy the right to be present and to cross-examine the witnesses against him."); Davis v Alaska, 415US 308, 316 (1974) (quoting with approval Wigmore's statement that "[t]he main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination").
247. See, for example, Davis v Alaska, 415US at 316-17.
248. See, for example, Maryland v Craig, 497 US 836, 850 (1990) (holding-on a 5-4 vote-that a prosecution witness can testify by closed-circuit television, without physically "confronting" the defendant, if the procedure is "necessary to further an important public policy" and "the reliability of the testimony is otherwise assured").
249. Wigmore, 2 Treatise on the Anglo-American System of Evidence § 1397, at 101 (cited in note 75). Wigmore explained that "[t]he Constitution does not prescribe what kinds of testimonial statements (dying declarations, or the like) shall be given infra-judicially,-this depends on the law of Evidence for the time being,-but only what mode of procedure shall be followed-i.e. a cross-examining procedure-in the case of such testimony as is required by the ordinary law of Evidence to be given infra-judicially." Id.
250. See, for example, Amar, Constitution and Criminal Procedure at 94 (cited in note 13).
251. See, for example, Penny J. White, Rescuing the Confrontation Clause, 54 SC L Rev 537, 555-91 (2003) (reviewing pre-Crawford case law).
252. See, for example, Ohio v Roberts, 448 US 56, 66 (1980)
253. California v Green, 399 US 149, 155 (1970).
254. See, for example, Catherine Drinker Bowen, The Lion and the Throne: The Life and Times of Sir Edward Coke 190-217, 414-16 (Atlantic, 1956)
255. Allen D. Boyer, The Trial of Sir Walter Raleigh: The Law of Treason, the Trial of Treason and the Origins of the Confrontation Clause, 74 Miss L J 869, 895(2005).
256. See, for example, Green, 399 US at 157 n 10
257. Francis Howard Heller, The Sixth Amendment to the Constitution of the United States: A Study in Constitutional Development 104-06 (Kansas, 1951)
258. Boyer, 74 Miss L J at 895-901 (cited in note 186)
259. Randolph N. Jonakait, The Origins of the Confrontation Clause: An Alternative History, 27 Rutgers L J 77, 81 n 18 (1995).
260. For skeptical assessments of this received understanding, see Kenneth W. Graham Jr., The Right of Confrontation and the Hearsay Rule: Sir Walter Raleigh Loses Another One, 8 Crim L Bull 99, 100 (1972)
261. Frank R. Herrmann and Brownlow M. Speer, Facing the Accuser: Ancient and Medieval Precursors of the Confrontation Clause, 34 Va J Intl L 481 (1994). Even the Supreme Court has begun to back away from the Raleigh story. Writing for the majority in Melendez-Diaz, Justice Scalia stressed that "[t]he right to confrontation was not invented in response to the use of the ex parte examinations in Raleigh's Case," although he reiterated that the case involved "a paradigmatic confrontation violation"-which was precisely why, Justice Scalia said, Raleigh's conviction "provoked such an outcry." 129 S Ct at 2534.
262. See, for example, James W. Jennings, Preserving the Right to Confrontation-A New Approach to Hearsay Evidence in Criminal Trials, 113 U Pa L Rev 741, 746 n 31 (1965).
263. See text accompanying notes 114-18.
264. See, for example, Roberts, 448 US at 63.
265. Mattox v United States, 156 US 237, 243 (1895).
266. Roberts, 448 US at 66.
267. Roberts also suggested that when a prosecution witness was available to testify in court, the Confrontation Clause "normally" called for the exclusion of the witness's out-of-court statements even in the face of "indicia of reliability." Id. But the Court made clear that "[a] demonstration of unavailability . . . is not always required," id at 65n 7, and even the qualified requirement later fell by the wayside, applied only to statements admitted under hearsay exceptions that themselves required a showing of unavailability. See White v Illinois, 502 US 346, 355-56 (1992)
268. United States v Inadi, 475US 387, 394 (1986)
269. Robert P. Mosteller, Confrontation as Constitutional Criminal Procedure: Crawford's Birth Did Not Require That Roberts Had to Die, 15J L & Pol 685, 694 n 28 (2007).
270. Idaho v Wright, 497 US 805, 817 (1990).
271. 541 US at 38-42.
272. See id at 56 n 6 (suggesting that if "an exception for testimonial dying declarations . . . must be accepted on historical grounds, it is sui generis").
273. See Giles v California, 128 S Ct 2678 (2008); text accompanying notes 222-24.
274. Crawford, 541 US at 50.
275. Id at 51. Regarding the Court's association of ex parte examinations with civil-law systems of adjudication, see Sklansky, 122 Harv L Rev 1634 (cited in note 176).
276. Crawford, 541 US at 51.
277. quoting White, 502 US at 365 (Thomas, J, concurring in part and concurring in the judgment).
278. Crawford, 541 US at 52, quoting Brief for National Association of Criminal Defense Lawyers et al as amici curiae.
279. Crawford, 541 US at 52.
280. Id at 835(Thomas, J, concurring in part and dissenting in part), quoting Crawford, 541 US at 50.
281. Id at 830 n 5. The Court has agreed to review a lower court decision concluding, under Davis, that a homicide victim's statement to the police, shortly after he had been shot, was "testimonial," because "the 'primary purpose' of the questions asked, and the answers given, was to enable the police to identify, locate, and apprehend the perpetrator," rather than to help the police respond to an "ongoing threat." See People v Bryant, 768 NW2d 65, 67, 71 (Mich 2009), cert granted, 78 USLW 3082 (2010).
282. Giles v California, 128 S Ct 2678, 2682 (2008).
283. People v Giles, 2009 WL 457832, at *3 (Cal Super, Feb 25, 2009).
284. Davis v Washington, 547 US at 829-30
285. see People v Giles, 2009 WL at *4; text accompanying note 51.
286. Giles v California, 128 S Ct at 2693.
287. See, for example, Lord Morley's Case, 6 How St Tr 769 (H L 1666)
288. Harrison's Case, 12 How St Tr 833 (H L 1692)
289. King v Woodcock, 1 Leach 500, 168 Eng Rep 352 (1879)
290. Queen v Scaife, 117 QB 238, 117 Eng Rep 1271 (KB 1851)
291. State v Moody, 3 NC 31 (Super L & Eg NC 1798).
292. See, for example, Epstein, 14 Widener L Rev at 430 (cited in note 64).
293. See, for example, Saul Cornell, The Original Meaning of Original Understanding: A Neo-Blackstonian Critique, 67 Md L Rev 150 (2007)
294. Larry Kramer, Two (More) Problems with Originalism, 31 Harv J L & Pub Pol 907 (2008)
295. H. Jefferson Powell, The Original Understanding of Original Intent, 98 Harv L Rev 885(1985 ).
296. But see, for example, Mitchell N. Berman, Originalism Is Bunk, 84 NYU L Rev 1 (2009).
297. But see, for example, Sklansky, 122 Harv L Rev at 1674-77 (cited in note 176) (suggesting there is little evidence the Framers and adopters of the Fourteenth Amendment "aimed to extend to the states not only the restrictions imposed by the Bill of Rights, but also the way those restrictions were understood by eighteenth-century common law judges").
298. Melendez-Diaz, 129 S Ct at 2531.
299. Commonwealth v Verde, 827 NE2d 701, 706 (Mass 2005). The Appeals Court of Massachusetts relied on Verde in affirming Melendez-Diaz's conviction, 2007WL2189152, *4 (July 31, 2007), and the Supreme Judicial Court denied review, 874 NE2d 407 (2007).
300. Crawford, 541 US at 56.
301. Palmer v Hoffman, 318 US 109, 114 (1943) (construing Act of June 20, 1936, 49 Stat 1561, codified until repeal at 28 USC § 695)
302. see Melendez-Diaz, 129 S Ct at 2538. On the background of the case and its role in the broader story of hearsay reform
303. see Ariens, 28 Ind L Rev at 191-224 (cited in note 81).
304. Lewis v Baker, 526 F2d 470, 473 (2d Cir 1975) (construing the Federal Business Records Act, June 25, 1948, 62 Stat 945, codified as amended at 28 USC 1732).
305. Advisory Committee Note, FRE 803(6).
306. FRE 803(6).
307. FRE 803(8)
308. see Melendez-Diaz, 129 S Ct at 2538.
309. See, for example, United States v Rosa, 11 F3d 315(2d Cir 1993)
310. Carolyn Zabrycki, Comment, Toward a Definition of "Testimonial" : How Autopsy Reports Do Not Embody the Qualities of a Testimonial Statement, 96 Cal L Rev 1093, 1123-24 (2008).
311. See, for example, United States v Brown, 9 F3d 907, 911-12 (11th Cir 1993)
312. United States v Orozco, 590 F2d 789, 793-94 (9th Cir 1979).
313. Melendez-Diaz, 129 S Ct at 2552-53 (Kennedy, J, dissenting).
314. Id at 2538-39 (opinion of the Court). The earliest authority Justice Scalia cited for this proposition was a Louisiana case decided in 1917, but he also referenced the third edition of Wigmore's treatise, which in turn cited, inter alia, Tennessee cases decided in 1796 and 1806. See Wigmore, 2 Treatise on the System of Evidence § 1678, at 753 n 3 (cited in note 34). Wigmore, like Justice Scalia, took it as "certain" under common law "that the only evidence receivable would be the testimony on the stand of one who had made the search" and that a "certificate of due search and inability to find was not receivable." Id at 752-53. He predicted, though, that this would "someday be reckoned as one of the most stupid instances of legal pedantry in our annals." Id at 754.
315. Melendez-Diaz, 129 S Ct at 2544, 2547 (Kennedy, J, dissenting).
316. Id at 2536, quoting Crawford, 541 US at 61-62.
317. Melendez-Diaz, 129 S Ct at 2533.
318. Antonin Scalia, The Rule of Law as a Law of Rules, 56 U Chi L Rev 1175 (1989).
319. Stephen Breyer, Our Democratic Constitution, 77 NYU L Rev 245, 247 (2002).
320. It is no coincidence that Justice Blackmun, who articulated the "indicia of reliability" test in his opinion for the Court in Ohio v Roberts, 448 US 56 (1980), shared Justice Breyer's concern for "real-world consequences," Breyer, Our Democratic Constitution at 249
321. See, for example, Linda Greenhouse, Becoming Justice Blackmun (Times, 2005)
322. Harold Hongju Koh, Justice Blackmun and the "World Out There," 104 Yale L J 23 (1994)
323. Note, The Changing Social Vision of Justice Blackmun, 96 Harv L Rev 717 (1983).
324. Friedman, Confrontation Right Across the Systemic Divide at 265(cite d in note 6).
325. Allen, 76 Minn L Rev at 799 (cited in note 3).
326. This is, of course, Justice Scalia's view. See, for example, Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation: Federal Courts and the Law 3 (Princeton, 1997).
327. On the latter question, see Sklansky, 122 Harv L Rev at 1670-77 (cited in note 176); note 21.
328. Madeleine Smith and Emile L'Angelier notwithstanding. See note 47.
329. People v Simpson, No BA097211, 1995WL 21768, *4-5(Cal Super, Jan 18, 1995); see note 47 and accompanying text.
330. Davis v Washington, 547 US 813, 833-34 (2006).
331. See, for example, Friedman and McCormack, 150 U Pa L Rev at 1171 (cited in note 143).
332. Coy v Iowa, 487 US 1012, 1017-18 (1988)
333. citing 1953 speech by President Eisenhower quoted in Pollitt, 8 J Pub L at 381 (cited in note 31)
334. see also Coy, 487 US at 1017 ("The phrase persists, 'Look me in the eye and say that.'")
335. Jay v Boyd, 351 US 345, 372 (1956) (Frankfurter, J, dissenting) (invoking President Eisenhower's 1953 description of the Abilene code)
336. For a thoughtful argument along these lines, see Mark Egerman, Avoiding Confrontation (unpublished manuscript, 2010) (on file with author).
337. See, for example, Tom Lininger, Prosecuting Batterers After Crawford, 91 Va L Rev 747, 749-50 (2005).
338. Paul H. Robinson and John M. Darley, The Utility of Desert, 91 Nw U L Rev 453, 457, 471-78 (1997)
339. see also Tom R. Tyler, Why People Obey the Law (Princeton 1990).
340. See Melendez-Diaz v Massachusetts, 129 S Ct 2527, 2542 (2009).
341. See, for example, People v Geier, 41 Cal 4th 555, 602 (2007).
342. See Melendez-Diaz, 129 S Ct at 2532, quoting Black's Law Dictionary at 62 (cited in note 39).
343. Id at 2531, quoting Crawford v Washington, 541 US 36, 52 (2004).
344. Melendez-Diaz, 129 S Ct at 2538.
345. See Zabrycki, 96 Cal L Rev at 1101-13 (cited in note 244).
346. Johnson v United States, 333 US 10, 14 (1948). Zabrycki suggested that the Supreme Court should deem a statement testimonial only if the statement was generated or elicited with the participation of "adversarial governmental officials" responsible for investigating or prosecuting the defendant.
347. Zabrycki, 96 Cal L Rev at 1137-38 (cited in note 244). Justice Kennedy noted this suggestion with approval in his Melendez-Diaz dissent, see 129 S Ct at 2552, but the majority was unreceptive.
348. David Luban, The Adversary System Excuse, in David Luban, ed, The Good Lawyer: Lawyers' Roles and Lawyers' Ethics 83, 91 (Rowman, 1983)
349. see also Murray L. Schwartz, The Zeal of the Civil Advocate, 1983 Am Bar Found Res J 543, 553 (suggesting that "the basic purpose" of criminal procedure is "to avoid one type of error").
350. William H. Simon, The Ethics of Criminal Defense, 91 Mich L Rev 1703, 1708 (1993).
351. FRE 804(b)(3).
352. Advisory Committee Note to FRE 804(b)(3).
353. See Report of the Advisory Committee on Evidence Rules (May 12, 2008). The proposed Committee Note explains that "[a] unitary approach to declarations against penal interest assures both the prosecution and the accused that the Rule will not be abused and that only reliable hearsay statements will be admitted under the exception." Id, attachment at 2
354. see also, for example, Letter to Peter G. McCabe, Secretary of the Committee on Rules of Practice and Procedure, Judicial Conference of the United States, by Professor David P. Leonard, Loyola Law School, Los Angeles, at 3 (Feb 14, 2009) (commenting that "it is sensible and fair to level the playing field by imposing the same restrictions on the prosecution as are imposed on the accused").
355. See, for example, Jeb Rubenfeld, Revolution by Judiciary (Harvard, 2005)
356. James Boyd White, Justice as Translation: An Essay in Cultural and Legal Criticism (Chicago, 1990)
357. Lawrence Lessig, Fidelity in Translation, 71 Tex L Rev 1165(1993)
358. David A. Sklansky, The Fourth Amendment and Common Law, 100 Colum L Rev 1739, 1743, 1746-47, 1763-64 (2000).
359. Weems v United States, 217 US 349, 373 (1910)
360. see also, for example, Harmelin v Michigan, 501 US 957, 1015 (Kennedy, J, concurring in part)
361. Browning-Ferris Industries of Vt v Kelco Disposal, 492 US 257, 276 (1989)
362. Thompson v Oklahoma, 487 US 815, 821 n 4 (1988)
363. Glass v Louisiana, 471 US 1080 (1985) (Brennan, J, dissenting)
364. Rummel v Estelle, 445 US 263, 307 (1980) (Powell, J, dissenting)
365. Gregg v Georgia, 428 US 153, 171 (1976) (opinion of Stewart)
366. Estes v Texas, 381 US 532, 564 (1965) (Warren, J, concurring)
367. Poe v Ullman, 367 US 497, 551 (1962) (Harlan, J, dissenting)
368. Olmstead v United States, 277 US 438, 473 (1928) (Brandeis, J, dissenting).
369. See David A. Strauss, Common Law Constitutional Interpretation, 63 U Chi L Rev 877 (1996). (Pubitemid 126408724)
370. Pollitt, 8 J Pub L at 402 (cited in note 31).
371. Federalist 67 (Hamilton), in Ian Shapiro, ed, The Federalist Papers 340, 341 (Yale, 2009).
372. Federalist 43 (Madison), in The Federalist Papers 219, 226 (cited in note 294).
373. Letters from the Federal Farmer, No VI (Dec 25, 1787), reprinted in Herbert Storing, ed, 2 The Complete Anti-Federalist 262 (Chicago, 1981).
374. See, for example, The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to their Constituents (Dec 12, 1787)
375. reprinted in Storing, 3 The Complete Anti-Federalist at 151 (cited in note 296)
376. The Impartial Examiner, No I, Virginia Independent Chronicle (March 5, 1788)
377. reprinted in Storing, 5 The Complete Anti-Federalist at 183 (cited in note 296).
378. North Carolina Declaration of Rights § VII (1776)
379. Vermont Declaration of Rights Ch I, § X (1777)
380. see also Delaware Declaration of Rights § 14 (1776) ("accusers or witnesses").
381. Noah Webster, 1 An American Dictionary of the English Language (Converse, 1828).
382. Massachusetts Declaration of Rights § XII (1780)
383. New Hampshire Bill of Rights § XV (1783).
384. North Carolina Declaration of Rights § VII (1776).
385. Rubenfeld, Revolution by Judiciary at 119, 134 (cited in note 290).
386. See text accompanying notes 186-87.
387. See Crawford, 541 US at 47-48
388. Pollitt, 8 J Pub L at 395-97 (cited in note 31).
389. Consider Dennis, 2010 Crim L Rev at 271 (cited in note 174) (arguing that the confrontation rights protected under UK and European law should be understood to rest, first and foremost, on a defendant's interest in "test[ing] the probative value of the evidence").
390. See Strauss, 63 U Chi L Rev 877 (cited in note 292).
391. Rubenfeld, Revolution by Judiciary at 15(ci ted in note 290).
392. See text accompanying notes 161-75.
393. See, for example, Olden v Kentucky, 488 US 227 (1988)
394. Delaware v Van Arsdall, 475 US 673 (1986)
395. Davis v Alaska, 415US 308 (1974).
396. Compare Coy v Iowa, 487 US 1012 (1988)
397. with Maryland v Craig, 497 US 836 (1990). 315 See note 180 and accompanying text.
398. Crawford, 541 US at 51.
399. See Davis v Washington, 547 US 813, 835-36 (2006) (Thomas, J, dissenting in part).
400. Weems, 217 US at 373.
401. Crawford, 541 US at 50.
402. Blakely v Washington, 542 US 296 (2004).
403. Sanchez-Llamas v Oregon, 548 US 331, 357 (2006).
404. See Sklansky, 122 Harv L Rev 1634 (cited in note 176).
405. Damaška, Evidence Law Adrift at 147 (cited in note 30).
406. See, for example, id; Brandon L. Garrett and Peter J. Neufeld, Invalid Forensic Science Testimony and Wrongful Convictions, 95V a L Rev 1, 33, 89 (2009)
407. Erin Murphy, The New Forensics: Criminal Justice, False Certainty, and the Second Generation of Scientific Evidence, 95Cal L Rev 721 (2007).
408. See, for example, Murphy, 95 Cal L Rev at 753-56, 770-71 (cited in note 326).
409. Garrett and Neufeld, 95V a L Rev at 33-34 (cited in note 326).
410. See Murphy, 95 Cal L Rev at 751-53, 772-74 (cited in note 326).
411. See, for example, Damaška, Evidence Law Adrift at 144-47 (cited in note 30)
412. National Research Council, Committee on Identifying the Needs of the Forensic Sciences Community, Strengthening Forensic Science in the United States: A Path Forward 85(N ational Academies, 2009)
413. Murphy, 95Ca l L Rev at 768-70 (cited in note 326).
414. See, for example, National Research Council, Strengthening Forensic Science at 214-15 (cited in note 330)
415. Murphy, 95Cal L Rev at 761-63 (cited in note 326).
416. See, for example, Pamela R. Metzger, Cheating the Constitution, 59 Vand L Rev 475, 491 (2006).
417. See Garrett and Neufeld, 95V a L Rev 33 (cited in note 326).
418. Justice Scalia read the study to conclude that "invalid forensic testimony contributed to the convictions in 60% of the cases," Melendez-Diaz v Massachusetts, 129 S Ct 2527, 2537 (2009), but this exaggerates the findings. Out of the 220 cases of exoneration they reviewed, Garrett and Neufeld identified 156 in which forensic evidence was presented-71% of the total. See Garrett and Neufeld, 95V a L Rev at 12 (cited in note 326). They obtained trial transcripts for 137 of those 156 cases, and concluded that 60% of those 137 cases-a total of 82-"involved invalid forensic science testimony." See id at 12-14. Their findings thus suggest that bad forensics were involved in somewhere around 43%-i.e., 60% of 71%-of the 220 cases of exoneration that Garrett and Neufeld reviewed.
419. See Garrett and Neufeld, 95V a L Rev at 12 (cited in note 326).
420. Some of the cases, though, did involve one examiner reporting work carried out by another. Telephone interview of Brandon Garrett, July 30, 2009.
421. See Garrett and Neufeld, 95V a L Rev at 10-11, 89 (cited in note 326).
422. Melendez-Diaz, 129 S Ct at 2536.
423. Id, quoting Crawford, 541 US at 61.
424. See, for example, Murphy, 95Cal L Rev at 753, 790-91 (cited in note 326).
425. See United States v Ritchie, 480 US 39 (1987)
426. United States v Bagley, 473 US 667 (1985)
427. Wayne R. LaFave et al, 6 Criminal Procedure § 24.3(a), at 341-43 (3d ed 2007).
428. See Murphy, 95Cal L Rev at 777, 788-91 (cited in note 326).
429. See Jules Epstein, The Great Engine That Couldn't: Science, Mistaken Identifications, and the Limits of Cross-Examination, 36 Stetson L Rev 727 (2007).
430. See, for example, id; Richard S. Schmechel et al, Beyond the Ken? Testing Jurors' Understanding of Eyewitness Reliability Research, 46 Jurimetrics J 177 (2006).
431. See, for example, Ford v Dretke, 135 F Appx 769, 772 (5th Cir 2005)
432. Epstein, 36 Stetson L Rev at 727-28 (cited in note 344).
433. Ake v Oklahoma, 470 US 68 (1985).
434. Id at 77, quoting Britt v North Carolina, 404 US 226, 227 (1971).
435. See, for example, Jay A. Zollinger, Comment, Defense Access to State-Funded DNA Experts: Considerations of Due Process, 85Ca l L Rev 1803 (1997). (Pubitemid 127436822)
436. See, for example, David A. Harris, The Constitution and Truth Seeking: A New Theory of Expert Services for Indigent Defendants, 83 J Crim L & Criminol 469, 484-87 (1992).
437. Ake, 470 US at 81
438. quoting Martin R. Gardner, The Myth of the Impartial Psychiatric Expert-Some Comments Concerning Criminal Responsibility and the Decline of the Age of Therapy, 2 Law & Psychol Rev 99, 113-14 (1976).
439. Ford, 135F Appx at 772
440. see Epstein, 14 Widener L Rev at 439 (cited in note 64)
441. Paul C. Ginnelli, Ake v. Oklahoma: The Right to Expert Assistance in a Post-Daubert, Post-DNA World, 89 Cornell L Rev 1305, 1356 (2004)
442. Harris, 83 J Crim L & Criminol at 484-86 (cited in note 351)
443. Zollinger, 85Ca l L Rev at 1810-15(c ited in note 350).
444. Pollitt, 8 J Pub L at 402 (cited in note 31).
445. US Const, Amend VI; see, for example, Harris, 83 J Crim L & Criminol 469 (cited in note 351)
446. Jonakait, 27 Rutgers L J 77 (cited in note 187)
447. PeterWesten, The Compulsory Process Clause, 73 Mich L Rev 72, 182-84 (1974)
448. consider California v Green, 399 US 149, 176 (Harlan, J, concurring) (suggesting that "the confrontation guarantee may be thought, along with the right to compulsory process, merely to constitutionalize the right to a defense as we know it")
449. Amar, Constitution and Criminal Procedure at 130, 244 n 189 (viewing the Confrontation Clause and the Compulsory Process Clause as "fraternal twin[s]").
450. Weems, 217 US at 373; see note 291 and accompanying text.
451. Report of the Advisory Committee on Evidence Rules 2 (May 12, 2008); see note 289 and accompanying text.
452. See Edward J. Imwinkelried, Rethinking the Limits of the Interpretive Maxim of Constitutional Avoidance: The Case Study of the Corroboration Requirement for Inculpatory Declarations Against Penal Interest (Federal Rule of Evidence 804(b)(3)), 44 Gonzaga L Rev 187, 189, 200-01 (2009).
453. See Sklansky and Yeazell, 94 Georgetown L J at 728-33 (cited in note 32).
454. Pollitt, 8 J Pub L at 401 (cited in note 31)
455. see also, for example, Robert B. McKay, The Right of Confrontation, 1959 Wash U L Q 122, 128-67.
456. Greene v McElroy, 360 US 474, 496-97 (1959).
457. Goldberg v Kelly, 397 US 254, 270 (1970).
458. See note 33.
459. S. F. C. Milsom, Reason in the Development of the Common Law, in Studies in the History of the Common Law 149, 152 (Hambledon, 1985).
460. see also, for example, David A. Sklansky, The Private Police, 46 UCLA L Rev 1165, 1271-72 (1999).
461. See David A. Sklansky, Cocaine, Race, and Equal Protection, 47 Stan L Rev 1283, 1312-15(1995 ).
462. See Sklansky and Yeazell, 94 Georgetown L J at 696-727 (cited in note 32).