Dead Again: The Latest Demise of the Confrontation Clause

In Crawford v. Washington, the Supreme Court abandoned its Roberts “reliability” approach to the right of confrontation. The Court conceded that the Roberts decision 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 deciding 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’s flaws, including its failure to constrain judicial discretion. This Essay exposes the underlying reasons for the Court’s failure, offers a solution to the problem, and provides suggestions for the Court when deciding future cases that involve the constitutional rights of criminal defendants.