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Cicchini on the Confrontation Clause
Michael D. Cicchini has posted Dead Again: The Latest Demise of the Confrontation Clause (Fordham Law Review, Vol. 80, 2011) on SSRN. Here is the abstract:
In Crawford v. Washington, the Supreme Court abandoned its Roberts “reliability” approach to the right of confrontation. The Court conceded that Roberts had killed the Confrontation Clause by: (1) impermissibly tying the right of confrontation to the rule against hearsay; (2) inappropriately allowing pretrial determinations of reliability to replace actual cross-examination at trial; (3) relying too heavily on malleable, multi-factor balancing tests; and (4) completely failing to constrain judicial discretion. Since Crawford, however, the Court has decided Davis v. Washington and Michigan v. Bryant. Unfortunately, in the course of those cases the Court has, once again, killed the Confrontation Clause. More specifically, the Court has developed yet another framework that incorporates every single one of Roberts’ flaws, including its failure to constrain judicial discretion. This Essay will expose the underlying reasons for the Court’s failure, will offer a solution to the problem, and will also offer lessons for the Court when deciding future cases that involve the constitutional rights of criminal defendants.