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| Volume 105 |
| An Online Symposium on the Confrontation Clause |
| The Supreme Court's opinion in the consolidated Davis v. Washington and Hammon v. Indiana case creates a new test to determine whether a statement is "testimonial" and therefore subject to Confrontation Clause limitations. In this online discussion, seven authors offer their perspective on this definition. |
"We Really (for the most part) Mean It!"
Richard D. Friedman, University of Michigan Law School
I closed my petition for certiorari in Hammon v. Indiana by declaring, " 'We really mean it!' is the message that lower courts need to hear, and that decision of this case can send."  |
Beating Expectations
Robert P. Mosteller, Duke Law School
I begin with a question of effectiveness: does the new Confrontation Clause doctrine effectively protect defendants with respect to the most important types of problematic out-of-court statements? |
Refining Crawford
Andrew C. Fine, Legal Aid Society of New York
Clarification of the Supreme Court's newly minted interpretation of the Confrontation Clause was desperately needed, and Davis v. Washington and Hammon v. Indiana promised to provide it. Two terms earlier, in Crawford v. Washington, the Supreme Court had worked a revolutionary transformation of Confrontation Clause analysis by overruling Ohio v. Roberts and severing the link between hearsay jurisprudence and the Clause.
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Circling around the Confrontation Clause
Lisa K. Griffin, UCLA School of Law
The Supreme Court's consolidated ruling in United States v. Davis and United States v. Hammon is a classic of the genre of consensus opinions to which the Roberts Court aspired in its first, transitional term. The opinion, authored by Justice Scalia, contains practical accommodations unusual in a decision by the Court's fiercest proponent of first principles.
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The Case for Cautious Optimism
Joan S. Meier, George Washington University Law School
The Supreme Court's consolidated decision in Davis v. Washington and Hammon v. Indiana offers something for everyone: by "splitting the difference" between the two cases--affirming one and reversing the other--the opinion provides much grist for advocates' mills on both sides of this issue.
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A Step Forward, or a Step Back?
by Tom Lininger, University of Oregon School of Law
Prosecutors, defense attorneys, and lower court judges hoped that the Supreme Court's ruling in the consolidated cases of Davis v. Washington and Hammon v. Indiana (hereafter simply Davis) would provide a primer on testimonial hearsay. In retrospect, these hopes were somewhat unrealistic.
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Still "Left in the Dark"
Anthony J. Franze & Jacob E. Smiles, Arnold & Porter LLP
In this essay, we consider the potential implications of Davis on two issues relevant to child abuse cases: how the Court's new test for "testimonial" might apply when the statements are by a child claiming abuse and whether statements to non-law enforcement personnel can ever be testimonial. We then briefly identify a few of the many questions left unanswered by the decision. Though Davis certainly has implications for child abuse cases, true clarity will have to wait for yet another day. |
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