Crawford Surprises: Mostly Unpleasant

Authors

Richard D. Friedman, University of Michigan Law SchoolFollow

Document Type

Article

Publication Date

2005

Abstract

Crawford v. Washington should not have been surprising. The Confrontation Clause guarantees a criminal defendant the right "to be confronted with the witnesses against him." The doctrine of Ohio v. Roberts, treating the clause as a general proscription against the admission of hearsay-except hearsay that fits within a "firmly rooted" exception or is otherwise deemed reliable-had so little to do with the constitutional text, or with the history or principle behind it, that eventually it was bound to be discarded. And the appeal of a testimonial approach to the clause seemed sufficiently strong to yield high hopes that ultimately the Supreme Court would adopt it. After all, on its face the clause establishes a categorical, unqualified right to be confronted with the adverse "witnesses," and witnesses are those who give testimony. Plainly, the clause was meant to ensure that prosecution witnesses give their testimony face to face with the accused.

Recommended Citation

Friedman, Richard D. "Crawford Surprises: Mostly Unpleasant." Crim. Just. 20, no. 2 (2005): 36-7.