Skip to main content
PRINT EDITION

The Dignitary Confrontation Clause

By March 1, 2022July 13th, 2022No Comments

Abstract: For seventeen years, the Supreme Court’s Confrontation Clause jurisprudence has been confused and confusing. In Crawford v. Washington (2004), the Court overruled prior precedent and held that “testimonial” out-of-court statements could not be admitted at trial unless the defendant had an opportunity to cross-examine the declarant, even when the statement would be otherwise admissible as particularly reliable under an exception to the rule against hearsay. In a series of contradictory opinions over the next several years, the Court proceeded to expand and then seemingly roll back this holding, leading to widespread chaos in common types of cases, particularly those involving statements to law enforcement officers and written affidavits of crime lab technicians. In these cases, for apparently pragmatic reasons, various pluralities of the Court appear to have redefined “testimonial” to mean, at least in part, “potentially unreliable,” thereby contradicting the goal of Crawford.

To help courts resolve this confusion, this Article proposes an overlooked, residual constitutional value, distinct from reliability, implicated in cases where defendants cannot confront witnesses who testify against them. Integrating historical and narrative analysis of the confrontation right’s origins in Anglo-American law with the psychological literature on guilt and deceit, it argues that a criminal defendant has a relational interest in asserting their moral presence against a potentially deceitful witness. It further argues that this interest harmonizes with the contemporary function of dignity in criminal constitutional jurisprudence. The Article concludes that criminal defendants have a distinct dignitary interest in confronting witnesses against them. It urges courts to untangle the contradictory web of Crawford and its progeny by considering the dignitary dimensions of the Confrontation Clause.

Download the Full Article

Other Articles from WLR Print Edition

June 1, 2023 in PRINT EDITION

In the Room Where It Happens: How Federal Appropriations Law Can Enforce Tribal Consultation Policies and Protect Native Subsistence Rights in Alaska

Abstract: Federal-tribal consultation is one of the only mechanisms available to American Indian and Alaska Native communities to provide input on federal management decisions impacting their subsistence lands and resources.…
Read More
June 1, 2023 in PRINT EDITION

Creating and Maintaining Consistent Standards Regarding the Role of Parental Substance Abuse at Shelter Care Hearings in Washington State

Abstract: When Child Protective Services (CPS) removes children from their home in Washington State, the State must hold a shelter care hearing within seventy-two hours to determine where the children…
Read More
June 1, 2023 in PRINT EDITION

Per Curiam Signals in the Supreme Court’s Shadow Docket

Abstract: Lower courts and litigants depend a great deal on the Supreme Court to articulate and communicate signals regarding how to interpret existing doctrine. Signals are at their strongest and…
Read More