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Home > Journals > Michigan Law Review > MLR FI > Vol. 113

 

Abstract

I want to get Justice Breyer back on the right side of Confrontation Clause issues. In 1999, in Lilly v. Virginia, he wrote a farsighted concurrence, making him one of the first members of the Supreme Court to recognize the inadequacy of the then-prevailing doctrine of the Confrontation Clause. That doctrine, first announced in Ohio v. Roberts, was dependent on hearsay law and made judicial assessments of reliability determinative. In Crawford v. Washington, the Court was presented with an alternative approach, making the key inquiry whether the statement in question was testimonial in nature. During the oral argument, Justice Breyer seemed to endorse the test I had articulated, in an amicus brief, for what makes a statement testimonial—”[W]ould a reasonable person in the position of declarant anticipate that the statement would likely be used for evidentiary purposes?” Ultimately, he was one of seven members of the Court to support Crawford’s dramatic adoption of a testimonial approach. And two years later, in Hammon v. Indiana (decided with Davis v. Washington), Justice Breyer was one of eight justices to treat as testimonial a woman’s statement accusing her husband of assaulting her, given that it was made to a police officer in the family living room a considerable time after the alleged event, while another officer held the accused at bay. (I like to think that I argued the case for the accused because I believed this was obviously right, not the other way around.)

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