The Confrontation Clause and Williams v. Illinois
This week’s Community discussion concerns the Court’s Confrontation Clause jurisprudence, which has been one of the more active and heated areas of case law in recent years. Much of the debate stems from the Court’s decision in Crawford v. Washington in 2004, which overruled the prior approach to Confrontation Clause objections adopted in Ohio v. Roberts in 1980. In Roberts, the Court had held that an out-of-court statement could be admitted (consistent with the Confrontation Clause) even if the declarant was unavailable so long as the statement bore “adequate indicia of reliability.”
In an opinion written by Justice Scalia, Crawford shifted the focus of the Clause from judging the out-of-court statement for indicia of reliability to asking whether the statement was “testimonial” in nature, in which case the declarant must be subject to cross-examination. But the Court never precisely defined what makes a statement “testimonial,” resulting in a a great deal of subsequent litigation – the most recent case of which is Williams v. Illinois, set for oral argument in the Court on Tuesday 12/6. We look forward to hearing your views on the Court’s handling of the Clause, Williams v. Illinois, and related issues per the topics posed below.
SPECIAL NOTE: Professor Nesson’s evidence class has obtained permission to post anonymously in this discussion as part of their final.