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Friday, November 18, 2011

Bellin on the Confrontation Clause and "Nontestimonial" Hearsay

Bellin, Jeffrey - Southern Methodist University Dedman SoLJeffrey Bellin (Southern Methodist University - Dedman School of Law) has posted The Incredible Shrinking Confrontation Clause (SMU Dedman School of Law Legal Studies Research Paper No. 84) on SSRN. Here is the abstract:

Sharp turns in the Supreme Court’s recent Confrontation Clause jurisprudence have left scholars reeling from conflicting emotions: exhilaration, despair, denial, and soon, perhaps, cynical acceptance. While most commentators celebrated the demise of the incoherent Ohio v. Roberts framework, their excitement largely faded with the decisions in Davis v. Washington and Bryant v. Michigan – decisions that revealed nascent flaws in the evolving doctrine and sharply curtailed the newly revitalized confrontation right.

Scholars seek to reanimate the doctrine by expanding the definition of “testimonial” – modern Confrontation Clause doctrine’s central term. This Article seeks a similar objective through a less traveled path. It accepts the Court’s focus on, and definition of, “testimonial” statements as a valid, even inevitable, jurisprudential development. The Article seeks instead to expand the reach of the confrontation right to “nontestimonial” hearsay, arguing that constitutional limits – albeit less strict ones – are also warranted for this type of hearsay in light of the policies, text and history of the Confrontation Clause. The Article then details how the Supreme Court can (consistent with the overarching historical, textual and policy arguments noted above) integrate these limits on the admission of nontestimonial hearsay into its new jurisprudence.

http://lawprofessors.typepad.com/crimprof_blog/2011/11/xxx-bellin-on-the-confrontation-clause-and-nontestimonial-hearsay.html

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