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"Confrontation Clause First Principles: A Reply to Professor Friedman," 86 Geo. L.J. 1045 (1998)

Abstract

Current Confrontation Clause doctrine is confused-in its reasoning more than in its results-and Professor Friedman's proposed alternative would eliminate much of the confusion.' Professor Friedman's key substantive insight is that the word "witnesses" in the Clause should be construed more narrowly, but that when the Clause does indeed apply, it lays down a bright-line rule, not a mushy balancing test. Professor Friedman's key methodological insight is that the Confrontation Clause is "very distinct" from ordinary hearsay doctrine. To interpret the Clause properly, we need to look, first and foremost, to constitutional law, not evidence law. All this is, I think, exactly right. But in crafting his proposed alternative, Professor Friedman fails to carry his substantive and methodological insights to their logical conclusions. He argues that "witnesses" under the Confrontation Clause should not encompass all out-of-court declarants, but should include all those who make accusatory statements with the understanding that those statements will later be presented to a factfinder at trial. Substantively, his definition of "witnesses," though cleaner and narrower than that adopted by the Supreme Court, is still a tad too broad. Methodologically, his definition unwittingly reflects residual traces of hearsay doctrine and tends to slight constitutional text, history, and structure. Professor Friedman's proposal is vastly more coherent than current doctrine, but I think we can do better still.

Date of Authorship for this Version

1998

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