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Nicolas on Crawford v. Washington & Unavailable Witnesses

By Lawrence Solum

Peter Nicolas (University of Washington School of Law) has posted But What If the Court Reporter is Lying? The Right to Confront Hidden Declarants Found in Transcripts of Former Testimony on SSRN. Here is the abstract:

In Crawford v. Washington, the U.S. Supreme Court re-theorized the relationship between hearsay evidence and the Confrontation Clause. Post-Crawford, hearsay statements that are ?testimonial? in nature are generally inadmissible when offered against the accused in a criminal case. Yet in Crawford, the Supreme Court held that former testimony is admissible against the accused (despite the fact that it is ?testimonial?) if the person who gave the former testimony is unavailable to testify and the accused had a prior opportunity to cross-examine the person.

This manuscript addresses the hidden hearsay and Confrontation Clause problems that arise when an effort is made to prove an unavailable witness?s former testimony through the use of a transcript or stenographic notes, or when the former testimony consists of hearsay statements made by third persons. The manuscript demonstrates that, post-Crawford, these additional layers of hearsay are often testimonial statements, and that the accused thus has a right to confront the court reporter or third person who made the statement, absent a historical exception. The manuscript then demonstrates that, historically, in both the United States and England, when efforts were made to prove former testimony, the accused always had the ability to confront such hidden declarants. Finally, the manuscript proposes practical ways of satisfying the Confrontation Clause that minimize the need for court reporters to appear at trial.

Full post as published by Legal Theory Blog on February 15, 2010 (boomark / email).