Abstract:
My contribution to this Symposium is chiefly about developing the further set of supporting doctrines that are necessary to ensure that actual confrontation occurs when hearsay is admitted under the exceptions to Crawford, which I suggest may be used to avoid much of its negative impact in cases involving children and domestic violence. When the confrontation right is satisfied by a child taking the stand at the current trial, the right must be understood to require that the prosecution call the witness and attempt to elicit his or her accusation publicly. The Confrontation Clause requires not only the right to cross-examine, but also, as the text itself indicates, the right to be confronted with the witness’ accusation. Similarly, when the confrontation right is satisfied in domestic violence cases by prior confronted testimony of an unavailable witness, the right must be understood to require that the prosecution call the witness to make his or her accusation at that other proceeding. Moreover, the proceeding must have consequences to the government and/or benefits for the defendant. The Clause is not satisfied by the prosecution simply making the witness available at a prior hearing or calling the witness to testify at a pretrial hearing that has no consequences other than to render the testimony admissible if the witness later becomes unavailable. A contrary interpretation would potentially transform the defendant’s right to be confronted with witnesses at trial into the inferior and inadequate right to have witnesses made available at some point during the prosecution of the case. (Author)