George argues that, centuries ago, jurists did not distinguish between testimonial and nontestimonial hearsay, and so the distinction cannot be a historically well-grounded basis for modern confrontation doctrine. The argument proceeds from an inaccurate frame of reference. When the confrontation right developed, principally in the sixteenth and seventeenth centuries, and English defendants—Raleigh among them—demanded that adverse witnesses be brought face to face with them, they were making a procedural assertion as to how witnesses must give their testimony. (Giving testimony is what witnesses in litigation do.) Rarely did they phrase this claim in terms of hearsay, for the simple reason that there was no rule against hearsay in the modern sense. Similarly, numerous statutes protected the right of treason defendants to have witnesses brought face to face, and these statutes never mentioned hearsay.
Richard D. Friedman & Jeffrey L. Fisher,
The Frame of Reference and Other Problems,
Mich. L. Rev. First Impressions
Available at: http://repository.law.umich.edu/mlr_fi/vol113/iss1/4