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Monday, November 11, 2013

Confrontation: How Much, and When?, A Guest Post by Kevin Lapp

I am curious when Evidence professors teach the Confrontation Clause, and how much coverage they allot to it. David Sklansky’s teacher’s manual suggests covering the Confrontation Clause after introducing hearsay but before going through the exemptions/exceptions. A quick check of a half dozen textbooks on my shelf found that all the others place the Confrontation Clause reading after the exemptions/exceptions. 

Since I’m in the middle of teaching the course for only the second time, I don’t have any developed thoughts about the timing and extent of coverage, and would love to read the comments of those who have taught the class more times about why they have made the choices they’ve made on this subject. 

For what it’s worth, I teach a 4 credit Evidence course, we spent about 2.5 hours covering the Confrontation Clause material I assigned, and I cover it after going through the hearsay exceptions. I’m inclined to cut the class time devoted to Confrontation down to 2 hours max next time through, and am open to covering it before we run through 803 and 804.

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Comments

Over the years, I've gradually cut down on the time that I use to cover the Confrontation Clause. I think that I'm now down to 1 hour in a 3 credit Evidence class. A large part of it is that I now find the Clause almost impossible to test on the final exam given the uncertainty surrounding it.

Posted by: Colin Miller | Nov 11, 2013 7:25:48 AM

I'm teaching a 3-credit Evidence class for the third time this semester, and I just spent a little over an hour on the Confrontation Clause last week. I covered it after the exemptions/exceptions. I use the Merritt/Simmons text and that's where they cover it, but I also find it works well there because I can foreshadow the CC when I'm originally talking about hearsay exceptions, and then it makes more sense in context when I actually cover it. And because it only applies to a limited number of the exceptions, I feel like if I covered it first, students might get a little too fixated on it and I'd rather they focus on the exceptions first. I also agree that it's very hard to test and I've never included it in an exam.

Posted by: Sara Gordon | Nov 11, 2013 1:28:18 PM

I think you have to do CC after hearsay and before the exceptions & exemptions. Otherwise, when doing a case where the exception would let it in, but the CC would keep it out, the students will not realize this til later; you'll have to go back and say "remember the X case? The HS rule let it in, but it won't get in due to the CC." That's doing it backwards, as an afterthought. It is simply not logical to wait til after doing the exceptions/exemptions.

Posted by: Fred Moss | Nov 12, 2013 7:19:02 AM

I teach a four-credit Evidence class, using the Sklansky text, and follow his suggested sequencing of the Confrontation Clause within the hearsay unit (though I save discussion of Williams v. Illinois for later in the semester when we cover the rules on expert testimony). I devote a total of several hours of class time over the course of the semester to it, partly because it is inherently interesting, partly because it illustrates the stakes involved with hearsay, and partly because it is a good vehicle for bringing in the constitutional backdrop that lies behind trials generally. I have also included it (in various aspects) on my final exams, both multiple choice (with great care, as the bright lines are indeed few) and short essay.

Posted by: Michael McGinniss | Nov 12, 2013 8:42:10 AM

Great to get these comments, and very helpful. While I can understand why it makes sense to cover Confrontation after introducing hearsay but before the exceptions/exemptions, I'm not sure it's backwards to do Confrontation afterwards. A court won't reach the constitutional issue unless there is admissible hearsay, after all, so it tracks the order of analysis to take up Confrontation as a step in the analysis after establishing all the ways that hearsay might be admissible.

One thing I like about keeping the Confrontation complication (that affects only a subset of admissible hearsay, and only in criminal cases, after all), off the table until we've gone through all the exemptions/exceptions is that it allows us to sustain our focus on the tall task of identifying hearsay and admissible hearsay.

But I'll only be able to compare the two approaches if I try them both, so I may introduce Confrontation before the exceptions next semester and see how it works.

Posted by: kevin lapp | Nov 12, 2013 8:52:46 PM

I use the Wellborn casebook, which covers Confrontation at the end of the Hearsay chapter (Chapter 2). I devote around four hours to it. In addition to the constitutional analysis, I use it as review of the applicable hearsay exceptions. Subsequently, I refer to Confrontation as background with other rules where it may apply.

Posted by: Maritza Reyes | Nov 14, 2013 12:12:21 PM

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