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Topic: Confrontation Clause

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		The meaning of the Confrontation Clause is also illuminated by the views of judges of the early and mid-19th century, who evinced no doubt about the origin and scope of the right to confrontation and were firmly of the view that this right did not call into question the validity of traditional hearsay exceptions.
		Recognizing that the Confrontation Clause and the hearsay rule both embody the view that live testimony, with an opportunity for cross-examination, is generally the most reliable form of evidence, the Court has regarded time-tested hearsay exceptions as presumptively consonant with the Constitution.
		Invoking the Confrontation Clause, the first Justice Harlan noted (174 U.S. at 54) that the defendant against whom the judgments were admitted had not been present at the thieves' trial and that, as a non-party, he could not have cross-examined them even if he had been there.
	www.usdoj.gov /osg/briefs/1985/sg850160.txt (11305 words)

	IPT Journal - "Confrontation Clause Revisited: Supreme Court Decisions Idaho v Wright, and Craig v Maryland"
		Moreover, the Clause does not erect a per se rule barring the admission of prior statements of a declarant who is unable to communicate to the jury at the time of trial.
		The court held that the procedure usually cannot be invoked unless the child initially is questioned in the defendant's presence and that, before using the one-way television procedure, the trial court must determine whether a child would suffer severe emotional distress if he or she were to testify by two-way television.
		The Clause's central purpose, to ensure the reliability of the evidence against a defendant by subjecting it to rigorous testing in an adversary proceeding before the trier of fact, is served by the combined effects of the elements of confrontation: physical presence, oath, cross-examination, and observation of demeanor by the trier of fact.
	www.ipt-forensics.com /journal/volume2/j2_3_6.htm (2244 words)

	ICE Journal (Site not responding. Last check: 2007-10-15)
		Although he joined the plurality opinion, Justice Breyer wrote separately to suggest that Confrontation Clause jurisprudence might be improved by severing its link to hearsay doctrine and recognizing that the Clause was principally meant to protect the right of an accused to meet his accusers face to face rather than the trustworthiness of evidence.
		The confrontation right expresses the insistence of the Anglo-American system that testimony be given under oath, face-to-face with the adverse party, and, if feasible, in open court.
		Confrontation: The Search for Basic Principles, 86 Georgetown L.J. I also believe that trustworthiness is a poor criterion in general for determining the admissibility of hearsay.
	www.law.qub.ac.uk /ice/papers/hearsay1.html (3135 words)

	No. 02-9410: Crawford v. State of Washington - Amicus (Merits)
		The Confrontation Clause should be confined to statements that are testimonial in nature, such as former testimony, affidavits, or confessions to law enforcement officers.
		Restricting the Confrontation Clause to testimonial hearsay also accords with the historical roots of the confrontation right, which was established to end the practice of obtaining criminal convictions through admission of ex parte affidavits untested by cross-examination.
		First, petitioner contends that the Confrontation Clause pertains solely to out-of-court statements that are testimonial in nature, because a person who makes a non-testimonial statement is not acting as a "witness against" the defendant within the meaning of the Clause.
	www.usdoj.gov /osg/briefs/2003/3mer/1ami/2002-9410.mer.ami.html (5829 words)

	IPT Journal - "Child Hearsay Vs The Confrontation Clause: Can The Sixth Amendment Survive?"
		Confrontation is an ordeal that upsets witnesses of all ages and stripes; it is unlikely that the Framers intended a right of confrontation as long as it is easy for the witness.
		Graham, "The Confrontation Clause and the Hearsay Rule: 'Congruent or Not Congruent?' That is the Question," 12 The Champion 3 (May 1988).
		No Confrontation Clause violation occurs (normally) as long as the accuser(s) testifies and is subject to cross-examination, even if the hearsay statements add new or supplemental information to the accused's live testimony.
	www.ipt-forensics.com /journal/volume1/j1_4_2.htm (13085 words)

	IPT Journal - "United States Supreme Court: Analysis and Application of the Confrontation Clause in Regard to ...
		After determinating that the Sixth Amendment Confrontation Clause required a face-to-face encounter, the court assessed whether the Iowa statute allowing the use of a screen to be placed between a child witness and the accused violated the Confrontation Clause and held it did.
		The trial court rejected the Confrontation Clause claim noting that, although the process takes away her right to a face-to-face confrontation, the essential elements of the Confrontation Clause — the right of cross examination, right to observe and have the jury view the demeanor of the witness-were preserved.
		In regard to the declaration of the younger sister, the court did not agree with the Idaho court that the lack of procedural safeguards was key to the untrustworthiness of the declaration and held that the Confrontation Clause does not require fixed procedures in regard to admission of hearsay statements.
	www.ipt-forensics.com /journal/volume9/j9_3_4.htm (11190 words)

	Criminal Appeal: Confrontation Clause
		The Confrontation Blog: This is the new blawg by University of Michigan Law Professor Richard D. Friedman.
		Washington, no. 02-9410---the Supreme Court's breakthrough confrontation clause case from earlier this term---the California Court of Appeal rejected the confrontation clause arguments of two co-defendants challenging the admission of statements made by the third co-defendant to his neighbor.
		To be sure, the Clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee.
	www.crimblawg.com /confrontation_clause (2000 words)

	American Civil Liberties Union : ACLU Amicus Brief in Lilly v. Virginia
		This conclusion is fortified by the placement of the Clause in the Sixth Amendment.
		Requiring confrontation when the prosecution has played a part in producing the evidence enables the public to scrutinize the process by which the government is exercising its power, and complements the other rights that the Sixth Amendment grants -- trial by jury, a public trial, specification of the charges, and right to counsel.
		If confrontation is not required, the government has the huge advantage of choosing whether to offer the contents of the statement through the testimony of the often discreditable declarant, or through the testimony of a presumptively upright person involved in law enforcement (assuming a hearsay exception otherwise applies).
	www.aclu.org /court/court.cfm?ID=13509&c=195 (8326 words)

	Sixth Amendment Overview (Site not responding. Last check: 2007-10-15)
		The first way entitles the defendant to be in court at all important stages of testimony, and their physical presence in the courtroom is normally required unless: (a) they voluntarily choose to be absent; or (b) they continually disrupt the proceedings after being warned not to do so.
		However, the U.S. Supreme Court has held that the confrontation clause does not prohibit hearsay under certain exceptions: if the prosecution demonstrated good-faith in getting a witness to testify; if the hearsay is trustworthy and reliable in the totality of circumstances; or any number of other exceptions to the hearsay rule.
		The most common situation in which the confrontation clause is triggered involves a joint trial of two or more co-defendants where one confesses (and implicates the others) while the others take the Fifth Amendment and refuse to testify on their behalf.
	faculty.ncwc.edu /toconnor/410/410lect14.htm (2787 words)

	Lilly v. Virginia-- Argument, Part I (file 3 of 4)
		Although close, the Confrontation Clause and the hearsay rule should not be and are not the same.
		This Court's interpretation of the Confrontation Clause examines hearsay exceptions through a combination of common sense and a respect for the collective wisdom of legislatures and the courts, consistently with the "common-law tradition.
		The Confrontation Clause is not meant to stifle needed reforms of the law of evidence with historical baggage.
	www.cjlf.org /briefs/lilly2.htm (3580 words)

	CONFRONTATION
		Illinois, 502 U.S. 346, 112 S.Ct. 736, 60 LW 4094 (1992), where the court held that the Confrontation Clause is not violated upon admission of hearsay that is admissible under a "firmly rooted" exception to the hearsay rule, such as the "excited utterance" exception (e.g.
		To satisfy confrontation clause prosecution must either produce or demonstrate unavailability of declarant whose statement it wishes to use against accused, and then show that statement bears indicia of reliability.
		Illinois, 502 U.S., 112 S.Ct. 736, 60 LW 4094 (1992), the U.S. Supreme Court held that the Confrontation Clause is not offended when hearsay is admitted under the "spontaneous declaration" and "medical examination" exceptions to the hearsay rule, without a showing that the declarant was unavailable.
	dha.state.wi.us /home/Digest01/c2.htm (3137 words)

	childabuselaw
		According to the Crawford decision, the Confrontation Clause excludes "testimonial" hearsay from trial unless the declarant testifies at trial, or the declarant is unavailable to do so and the accused had an opportunity to cross-examine the declarant at the time of the hearsay.
		The Court said that most of its prior Confrontation Clause cases had reached results consistent with the rule it was announcing, but it acknowledged that they had done so without using that rule.
		Under the Crawford decision, the federal Confrontation Clause does not exclude any hearsay from a trial if the declarant testifies at the trial-- even if at trial he or she contradicts the hearsay or professes no memory of the events recounted in the hearsay.
	www.childabuselaw.info /lawnews/CrawfordDecision.htm (1163 words)

	Making History
		The State argued that it appeared from the statement that Crawford's wife played a role in the stabbing and, thus, the statement was against her penal interest.7 Crawford objected, arguing that his wife was unavailable due to the marital privilege and that admission of the statement violated the Sixth Amendment's Confrontation Clause.
		Consequently, use of the affidavit at trial violated the Confrontation Clause unless the health care professional was "unavailable to testify at trial, and the defendant had a prior opportunity to cross-examine the health care professional regarding the statements in the affidavit."51
		Crawford is indeed a "paradigm shift in confrontation clause analysis." This case imposes a radically new way of looking at hearsay statements in a criminal case.
	www.nvbar.org /Publications/Nevada%20Lawyer%20Magazine/2004/September/Crawford.htm (1968 words)

	The Confrontation Blog
		The confrontation right as such applies only to criminal prosecutions: A testimonial statement may not be offered at trial against an accused if he is not afforded an opportunity to cross-examnie the maker of the statement.
		The Confrontation Clause is not applicable, but denial of the right to cross-examine in these circumstances seems to be a blatant violation of general due process.
		I am inclined to think that the result should be the same, even if the Confrontation Clause is deemed inapplicable, when the witness dies before cross at the sentencing hearing, and if that is so the result should be the same if the testimonial statement was made before rather than at the hearing.
	confrontationright.blogspot.com (4747 words)

	Tribe - The Constitution in Cyberspace (Site not responding. Last check: 2007-10-15)
		to be confronted with the witnesses against him." Justice O'Connor wrote for a bare majority of five Justices that the state's procedures nonetheless struck a fair balance between costs to the accused and benefits to the victim and to society as a whole.
		Tarkanian, 109 S. Ct. at 462.) The world in which the Sixth Amendment's Confrontation* Clause was written and ratified was a world in which "being confronted with" your accuser necessarily meant a simultaneous physical confrontation so that your accuser had to perceive you being accused by him.
		In Craig, a majority of the Justices assumed that, when the 18th- century Framers of the Confrontation Clause included a guarantee of two-way physical confrontation, they did so solely because it had not yet become technologically feasible for the accused to look his accuser in the eye without having the accuser simultaneously watch the accused.
	www.epic.org /free_speech/tribe.html (4480 words)

	Contents of II. DEVOLUTION OF THE CONFRONTATION CLAUSE UNDER THE SUPREME COURT (Site not responding. Last check: 2007-10-15)
		That same year saw the birth pangs of disagreement about the scope of the right(s) that the Clause affords: although some readings of Mattox may have implied that both physical confrontation and cross-examination were fundamental to satisfying the Clause, the Court argued over whether either was truly indispensable and which was more important.
		This trend continued through the 1980’s, with a departure from the focus on physical confrontation and an assumption that, as with the hearsay rule, the reliability of the testimony was the object of the confrontation right.
		Again, however, each decision focused on the importance of one of the two interpretations of the confrontation right: affording the opportunity to test the reliability of the witness by cross-examination and by observation of his or her demeanor.
	www.law.upenn.edu /conlaw/issues/vol3/num2/blumenthal/node4_ct.html (605 words)

	Back Issues & Abstracts (Site not responding. Last check: 2007-10-15)
		George L. Ashley, The Uncertain Relationship Between the Hearsay Rule and the Confrontation Clause, 52 TEXAS L. Since 1965 a large number of criminal defendants have attacked their convictions by claiming violations of the sixth amendment’s confrontation clause.
		A literal reading of the clause would exclude all hearsay evidence in criminal trials, but in its earliest decisions the Supreme Court clearly rejected this interpretation as impractical and improper.
		Although the clause does impose some limits on the use of extra judicial statements in criminal trials, the Supreme Court has eschewed comprehensive definition of the amendment’s protection, preferring to consider the reach of the clause on a case-by-case basis.
	www.utexas.edu /law/journals/tlr/abstracts/Volume%2052/Ashley.htm (108 words)

	TBJ- May 2004 - Article 1 (Site not responding. Last check: 2007-10-15)
		Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law — as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether.
		Non-testimonial evidence is governed by evidence rules, not the Confrontation Clause.
		By way of contrast, former testimony under TRE 804(b)(1) is certainly testimonial and is admissible under the Confrontation Clause only if the declarant is absent.
	www.tba.org /Journal_Current/200405/TBJ-200405-article2.html (1259 words)

	Observing United States (Site not responding. Last check: 2007-10-15)
		"Confrontation Clause" sia ancor di più utilizzato come argomento di diritto comparato "forte" dal vasto schieramento critico verso la soluzione adottata dal giudice delle leggi.
		La "Confrontation Clause" infatti non ha mai impedito il riconoscimento storico nell'area di common law di una serie numerosa di eccezioni alla "rule against hearsay" caratteristica del processo penale nell'area di common law.
		Appare quindi evidente come pur partendo da prospettive radicalmente distanti i due sistemi avvertano difficoltà di analoga natura sul tema suggestivo e in fondo transnazionale della "Confrontation Clause" senza riuscire - pare di poter sommessamente aggiungere - a trovare almeno allo stato un momento di componimento dei contrastanti interessi chiaro e soddisfacente.
	www.jus.unitn.it /cardozo/Review/Crime/Tripodi_1999/Oss.htm (3048 words)

	ABOLISH Archives, 1 March, 2004 to Present: NEWS: NEW CLOUT FOR (Site not responding. Last check: 2007-10-15)
		interviews with child victims was hearsay and violated the U.S. Constitution's confrontation clause.
		confronted with the witnesses against him." Earlier this year, the U.S. Supreme Court ruled in Crawford that testimonial evidence could be
		The confrontation clause in the Sixth Amendment
	venus.soci.niu.edu /~archives/ABOLISH/oct04/0932.html (1787 words)

	SSRN-The Confrontation Clause Re-Rooted and Transformed by Richard Friedman
		Washington, 124 S.Ct. 1354 (2004), in the law governing the Confrontation Clause of the Sixth Amendment to the Constitution.
		The article argues that a statement is testimonial if it was made in circumstances in which a reasonable person would anticipate that it would have evidentiary use, whether or not it was made directly to a governmental official or in response to interrogation.
		Friedman, Richard D., "The Confrontation Clause Re-Rooted and Transformed".
	papers.ssrn.com /sol3/papers.cfm?abstract_id=593362 (252 words)

	The Confrontation Clause (Site not responding. Last check: 2007-10-15)
		The child would also avoid being cross-examined by the defendant’s lawyer.
		The problem, however, is that the United States Constitution grants a criminal defendant the right to confront and cross-examine his accusers.
		When courts have been asked to weigh these competing interests, they have consistently ruled in favor of the defendant and required children to appear in court as a live witness.
	www.ctnetworks.com /attorneys/confrontationclause.htm (384 words)

	Confrontation Clause, Deposition, and Misc.Hearsay Exception (Site not responding. Last check: 2007-10-15)
		Can Use Hearsay Exceptions in Face of Confront.
		Ways 2 Overcome Confrontation Cl Unavailable / avail.
		Use of this material for profit is strictly prohibited without a written permission from the author.
	www.csun.edu /~hbact447/school/evidence.outline3.html (94 words)

	Appellate Law & Practice: Confrontation Clause Challenge Rejected
		Appellate Law & Practice: Confrontation Clause Challenge Rejected
		Posted by Sixth Circuit on February 02, 2005 at 10:19 AM in, AEDPA, Sixth Circuit
		Listed below are links to weblogs that reference Confrontation Clause Challenge Rejected:
	appellate.typepad.com /appellate/2005/02/confrontation_c.html (153 words)

	S. G. R. MacMillan: For the defence of serious criminal cases
		Clause requires us to "confront" the recurring puzzle of how
		two-way confrontation, in which your accuser is supposed to be made
		Amendment's Confrontation Clause was written and ratified was a
	www.sgrm.com /art1.htm (5974 words)

	CrimProf Blog: Eleventh Circuit Holds That Witness Testimony By Two-Way Video Teleconference Violates Confrontation ...
		Eleventh Circuit Holds That Witness Testimony By Two-Way Video Teleconference Violates Confrontation Clause
		Yates that witness testimony via two-way video teleconference violates the Sixth Amendment right to confrontation.
		In doing so, the court rejected the government's arguments that the procedure was necessary because the witnesses were "essential" to the prosecution's case, were located in Australia and thus beyond the subpoena power of the U.S., and had refused to travel to the U.S. to testify.
	lawprofessors.typepad.com /crimprof_blog/2004/11/witness_testimo.html (328 words)

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