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

July 15, 2022 in PRINT EDITION

Let Us Not Be Intimidated: Past and Present Applications of Section 11(B) of the Voting Rights Act

Abstract: As John Lewis said, “ vote is precious. Almost sacred. It is the most powerful non-violent tool we have to create a more perfect union.” The Voting Rights Act (VRA),…
Read More
July 15, 2022 in PRINT EDITION

Queer and Convincing: Reviewing Freedom of Religion and LGBTQ+ Protections Post-Fulton v. City of Philadelphia

Abstract: Recent increases in LGBTQ+ anti-discrimination laws have generated new conversations in the free exercise of religion debate. While federal courts have been wrestling with claims brought under the Free Exercise…
Read More
March 1, 2022 in PRINT EDITION

The New Bailments

Abstract: The rise of cloud computing has dramatically changed how consumers and firms store their belongings. Property that owners once managed directly now exists primarily on infrastructure maintained by intermediaries. Consumers…
Read More