Recent Development: The Death of Confrontation Clause Originalism?, Michigan v. Bryant, 131 S. Ct. 1143 (2011)

Before 2004, the Confrontation Clause did not bar out-of-court statements admitted against a criminal defendant, even if the defendant could not cross-examine the declarant, if the declarant was unavailable to testify; and the evidence bore "adequate 'indicia of reliability,' " w...

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Bibliographic Details
Published in:Harvard civil rights-civil liberties law review 2012-12, Vol.47 (1), p.251
Main Author: Noveck, Michael R
Format: Article
Language:English
Subjects:
Clauses
Court decisions
Criminal pleas
Cross examination
Evidence
Testimony
Online Access:Get full text
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Summary:Before 2004, the Confrontation Clause did not bar out-of-court statements admitted against a criminal defendant, even if the defendant could not cross-examine the declarant, if the declarant was unavailable to testify; and the evidence bore "adequate 'indicia of reliability,' " which existed where the statement "fell within a firmly rooted hearsay exception" or contained other "particularized guarantees of trustworthiness." However, in Crawford v. Washington, an opinion authored by Justice Scalia, the Court rejected this framework on originalist grounds. Instead, the Court read the Clause to prohibit the introduction of "testimonial" statements against a criminal defendant, absent an opportunity to cross-examine the declarant.
ISSN:0017-8039
1943-5061