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Law Quadrangle (formerly Law Quad Notes)

Abstract

The following edited excerpt, drawn from "The Confrontation Clause Re-Rooted and Transformed", 2003-04 Cato Supreme Court Review 439 (2004), by Law School Professor Richard D. Friedman, discusses the impact, effects, and questions generated by the U.S. Supreme Court's ruling in Crawford v. Washington last year that a defendant is entitled to confront and cross-examine any testimonial statement presented against him. In Crawford, the defendant, charged with attacking another man with a knife, contested the trial court's admission of a tape-recorded statement his wife made to police without giivng him the opportunity to cross-examine. The trial court admitted the statement, and the appeals court upheld the conviction.

When Crawford was argued before the U.S. Supreme Court in November 2003, the guiding principle for two decades had been that "the U.S. Supreme Court has tolerated admission of out-of-court statements against the accused, without cross-examination, if the statements are deemed 'reliable' or 'trustworthy'," according to Friedman. But in Crawford, "the Supreme Court did a sharp about-face, holding that a 'testimonial' statement cannot be admitted against an accused, no matter how reliable a court may deem it to be, unless the accused has had an adequate opportunity to cross-examine the witness who made the statement."

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