Jeffrey Bellin and Diana Bibb (William & Mary Law School and College of William and Mary – William and Mary Law School) have posted The Modest Impact of the Modern Confrontation Clause (Tennessee Law Review, Forthcoming) on SSRN. Here is the abstract:
The Sixth Amendment’s Confrontation Clause grants criminal defendants the right “to be confronted with the witnesses against” them. A strict reading of this text would transform the criminal justice landscape by prohibiting the prosecution’s use of hearsay at trial. But until recently, the Supreme Court’s interpretation of the Clause was closer to the opposite. By tying the confrontation right to traditional hearsay exceptions, the Court’s longstanding precedents granted prosecutors broad freedom to use out-of-court statements to convict criminal defendants.
The Supreme Court’s 2004 decision in Crawford v. Washington was supposed to change all that. By severing the link between the Sixth Amendment and the hearsay rules, Crawford “ushered in a revolution in the world of evidence and criminal prosecutions.” But the excitement did not last. Shifting majorities filled in the details of Crawford’s lofty rhetoric, muddying the distinction between the new jurisprudence and what had gone before.
This Article takes stock of the “Crawford Revolution.” First, it explores changes in confrontation doctrine since 2004 and examines, as a theoretical matter, how those changes map onto the state and federal hearsay exceptions that Crawford purportedly rendered irrelevant to constitutional analysis. This interplay between the hearsay rules and the Confrontation Clause is critical. The constitutional right would seem to have little significance if all it does is bar evidence that is already forbidden by nonconstitutional hearsay rules. Second, the Article reports the results of a novel empirical survey designed to test the theory by carefully cataloguing the hearsay pathways that generated Confrontation Clause challenges in hundreds of federal and state cases. The findings reveal an underappreciated role of the modern confrontation right, and changes to that role after 2004.