I'm not exactly sure what the implication of a strict adherence to Raleigh's argument (i.e. that the witnesses need to testify live) would look like. How do the exceptions fit into that? If the witness died, would introducing their testimony be a violation of the Amendment. The "Raleigh principal" seems broad, and I'm not sure exactly what it would guarantee.
I felt shorted on the facts a bit and was confused about how exactly these flowed together. I was also a bit confused on your take on Scalia. Did you like the outcome, just not at how he arrived at it?
Is it too late for the Court to course correct? It's followed the path of Confrontation-as-admissibility for so long, it's built up such a long and venerable line of precedent. Is it possible to transition to Confrontation-as-sufficiency? Should it incorporate BOTH admissibility and sufficiency into its reading of Confrontation?
I'm a bit confused on the principle element of a constitutional rule--how accessible should these rules be to the public? With the increasing professionalization of law, what does it mean for something to be plain language but still confusing when there are non-apparent terms of art incorporated? With this in mind, I'm not quite sure how to interpret the buildup to Crawford
What was the motivation of the Court in moving from a full confrontation principle (the government must have admissible, sufficient evidence to bring the case) to a poorer right, the right to cross-examination? Was this a subconcious shift by law and order conservatives, ad/oror does it reflect a fundamental disagreement with the originalist view on the 6th amendment?
I see value in the right to confront witnesses (even though I don't really like the Scalia rule) as opposed to the right to be confronted with witnesses as described by Professor Nesson. Considering that we've been going down the hearsay path for so long, does it make sense to upend that precedent for the sake of adhering to the originalist interpretation of the 6th amendment that Professor Nesson offers
It seems that all of these issues and decisions come down to whether or not they are made and used with a moral compass/ intentions. Any rule can be twisted to accomplish malicious purpose and any rule can be twisted to accomplish noble purposes. I am not sure how it can be possible to design a constitutional rule that has enough flexibility to survive time but also can not be twisted to do "bad things".
I would, tomorrow, like a fuller explanation of the confrontation clause and how it relates to hearsay. I feel like I'm beginning to see the connection between the two -- but would really appreciate a succinct explanation (maybe with a graph). Particularly I would like a fuller explanation of the confrontation clause and its relationship to hearsay (and its exceptions) in addition to further explanation of testimonial statements and how that triggers confrontation clause protections. What does it mean for the confrontation clause to be triggered
I know this is somewhat incidental to today's main topic, but I found fascinating the biographical frame in which Professor Nesson cast Wigmore's approach to the Confrontation Clause (viz., having dedicated much of his academic life to articulating exceptions under the hearsay rule, Wigmore could not now accept the notion that this was all rendered irrelevant by the Constitution).
I think it would be helpful to have more of a visual diagram as to how these all fit together or the changes that occurred in how we approach the Confrontation Clause. When talking in the abstract, particularly about principles and rules, etc., I think that it's easy to forget where it all leads and comes nets out.
I am curious about what the consequences would be if the Sixth Amendment text were taken literally. Would it mean that the confrontation right would have no exceptions? For instance, would it mean that if a defendant ordered the murder of a key witness, the forfeiture by wrongdoing exception would no longer permit the prosecution to proceed with that witness's out-of-court statement?
how do we define who is a "witness"? is it just confined to people that the state plans to call at trial or whose statements may be used as evidence against the defendant at trial? What about, for example, an anonymous person who phoned in a tip to law enforcement that formed the basis for the police determination that they had probable cause to make an arrest?
I think that by its nature the confrontation clause will be hard to administer with any sort of hard and fast rule. If the witness, no matter the situation, had to be present in court and testifying, there would be perfectly reliable testimony that would be excluded. At the same time, nailing down what exactly those exclusions are is quite difficult.
Justice Scalia makes a key distinction between evidence that is "testimonial" and that which is not and that seems to hinge entirely (and as was pointed out in class) on a close textual reading of the Sixth Amendment. But it strikes me as rather cursory that he has derived and justified such an important distinction from one dictionary source.
I find the alternative framing of Raleigh interesting since it seems so central to Scalia's reasoning in Crawford. When we started our discussion on what makes a good constitutional rule, I was a bit confused by using 4A and 5A as examples. It seems that someone could distinguish 4A and 5A as intending to burden and obligate the state, whereas 6A is providing rights to the accused. Given the rest of the rights laid out in 6A, this seems like a more plausible reading of the values rather than burdening the state to produce direct evidence.
I agree with Professor Nesson's textual interpretation of the Sixth Amendment but I wonder if that categorically precludes the necessity argument in Mattox. If the testifying witness happens to die the day before the grand jury proceeding, does that mean the defendant will not be indicted?
If I remember correctly, it's your contention that the phrase "and to have the Assistance of Counsel for his defense" does the work of guaranteeing a right to cross examination. I would like to hear more about the historical background supporting this position. In other words, I'd like to see support for the idea that assistance of counsel necessarily carries with it the right of cross exam. The word "assist" seems too weak to hang something so fundamental on. Was cross exam so fundamental by 1791 that it's actually included in the phrase "speedy and public trial?"
My confusion is how we departed so far from the original meaning of Confrontation as stated in the Constitution to get the myriad of tests that evolved from it and all of the hearsay rules that we have today the are conceived of as part of the confrontation clause. It's interesting to see how the understanding of lower courts trickled up through Wigmore. It seems that Scalia just replaced the administrability problem moving forward from what is "reliability" to what is "testimonial."
Most of Scalia's opinion to me is frustrating because he solves the problem of Ohio (lack of administrability) with something else that is impossible to administer. Virtually all statements from someone naming a person as the cause of a crime is in some way meant to be "testimony," even in cases that Scalia deems outside the realms of testimony like in 911 calls to save oneself. Those situations just serve a dual purpose: one to protect the caller, but ALSO, if they name a specific person as their assailant, to make it known by the state who to potentially prosecute. The rule, therefore, swallows itself.