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Everything Old Is New Again in Confrontation Clause Analysis

Criminal Law Reporter

September 28, 2011

Converse sneakers? Check. Tight jeans? Now called ‘‘skinny’’ jeans, but you bet. Bell-bottoms? Ask your kids if you don’t think so. We have a way of recycling clothing styles that had fallen out of fashion in favor of the better and the newer.

Well, the U.S. Supreme Court may now be proving that the criminal law sometimes follows the same nostalgic rhythm. For decades beginning in 1980, the court’s Sixth Amendment jurisprudence had framed the application of the Confrontation Clause in criminal cases in an easy-to-understand way. The defendant’s right to confront the witnesses against him or her meant that the government could rely on hearsay statements of unavailable witnesses if those statements could be fit into any traditional exception to the hearsay rule. So the government routinely offered unavailable declarants’ statements of mind (‘‘I have to leave to go pick up some drugs for defendant X to sell’’), prior grand jury or plea allocution testimony, and the like.

No one who was a prosecutor in the 1980s or 1990s gave serious thought to overcoming a Confrontation Clause objection, because most of us had never been presented with one. That all changed in 2004, in an opinion written for the court by Justice Antonin Scalia, which reverted to what purported to be an originalintent reading of the text. Centuries-old English law was used to support a much more stringent test for such out-of-court declarations, requiring most to have undergone cross-examination prior to trial before they could be admitted in lieu of the declaring witness. Needless to say, this development was cheered by defense counsel and rued by prosecutors.

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