CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Tuesday, February 1, 2011

Duncan on "Qualified" Notice-and-Demand Statutes

Samuel M. Duncan has posted 'Qualified' Notice-and-Demand Statutes Unconstitutionally Eliminate a Criminal Defendant’s Sixth Amendment Right to 'True' Confrontation: Live Testimony from Witnesses (Hamline Law Review, Vol. 34, 2011) on SSRN. Here is the abstract:

This Article contends that "qualified" notice-and-demand statutes, enacted in many states, violate a criminal defendant's Sixth Amendment right to confrontation. Plain notice-and-demand statutes allow a prosecutor to introduce a witness' testimony in written form unless the defendant demands live testimony. Qualified statutes require some showing above a timely demand before requiring that the witness testify in person. These statutes are unconstitutional because the Confrontation Clause, properly understood, protects a defendant's right to "true" confrontation - live testimony from prosecution witnesses - as well as the right to cross-examination. This interpretation is well supported by case law and the history of confrontation at common law, and furthers the reasoning of and principles behind Crawford v. Washington. Further, this Article argues that qualified notice-and-demand statutes are invalid because they conflict with the current interpretation of the Confrontation right, by forcing waiver of objections that would be unquestionably valid under Crawford.

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