Document Type

Working Paper

Publication Date

5-17-2019

SSRN Discipline

Legal Anthropology eJournals; LSN Subject Matter eJournals; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; CJRN Subject Matter eJournals; Legal Scholarship Network; Criminal Law & Procedure eJournals; Law School Research Papers - Legal Studies; Law & Society eJournals; Law & Society: Public Law eJournals; AARN Subject Matter eJournals; Criminal Justice Research Network; Political Science Network; Anthropology & Archaeology Research Network

Abstract

This symposium essay discusses the recent history and current state of the Confrontation Clause and then explores its possible futures Justice Scalia's 2004 opinion in Crawford v Washington transformed confrontation doctrine and consequently rendered many types of hearsay statements potentially inadmissible in criminal cases Although Crawford strengthened the right to confrontation in several respects the subsequent decade produced significant backlash and disagreements"”including dissenting opinions from Justice Kennedy"”as the Court attempted to implement and develop confrontation doctrine The fault lines that emerged among the Justices have left the current state of confrontation doctrine in disarray particularly in cases involving expert witnesses The replacement of Justices Scalia and Kennedy Crawford's champion and one of the principal dissenters in subsequent cases respectively with Justices Gorsuch and Kavanaugh has added to the uncertainty surrounding the doctrine's future This essay examines the possible pathways by which the doctrine on the Confrontation Clause may develop distinguishing between cases involving experts and nonexpert witnesses

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