Supreme Court case adopts view of law prof

The U.S. Supreme Court recently issued a decision that fundamentally transforms the way in which it considers the Confrontation Clause of the Sixth Amendment to the Constitution. The majority opinion in the case cited the work of Richard Friedman, Ralph W. Aigler Professor of Law at the Law School.

The Confrontation Clause guarantees the right of a criminal defendant to be confronted with the witnesses against him.

Until the March 8 decision, the court had treated the clause as a flexible rule that could be overcome by showing that a particular statement—although made by a witness out of court and not subject to cross-examination by the defendant—was reliable.

By a 7-2 vote in Crawford v. Washington, the court held the clause provides a categorical rule that a testimonial statement cannot be offered against a criminal defendant unless the defendant has had a chance to cross-examine the person who made the statement.

Although the court declined to offer a precise definition of the term "testimonial," it declared that the statement involved in this case—which was made by a witness to the police in the station-house, shortly after a crime allegedly was committed—was at the core of the concern underlying the Confrontation Clause.

Justice Antonin Scalia's opinion for the majority noted that academics as well as individual justices had suggested that the court revise its doctrine "to reflect more accurately the original understanding of the Clause."

One of the two academics it cited was Friedman. For years, Friedman has been the leading academic advocate of the view now adopted by the court.

"This is a decision of great and beneficial importance," he said. "It restores the Confrontation Clause to its proper position of glory as one of the chief bulwarks of our system of criminal justice.

"Over the long term, it offers the potential for significant transformations in procedure and evidentiary law. Prosecutors will now understand better than before the importance of taking testimony subject to cross-examination, and we can anticipate that this will happen before trial more frequently than has been the case."

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