Tuesday, January 12, 2010
First, the hearsay rule has earned its unpopularity. It excludes too much probative evidence with too little justification. This is especially true of the uncompromising, eighteenth-century version of the hearsay rule the Supreme Court has now read into the Sixth Amendment. Second, by treating the Confrontation Clause as, first and foremost, a codification of eighteenth-century evidence rulings, the Crawford line of cases diverts attention from dimensions of confrontation not captured by the hearsay rule – dimensions that may grow increasingly important as scientific evidence plays a larger and larger role in criminal prosecutions. Third and finally, by constitutionalizing the hearsay rule, but only as it applies to evidence introduced against criminal defendants, Crawford threatens to impede the cross-fertilization between the doctrines governing out-of-court statements in criminal cases and the parallel rules in civil cases.