Confrontation Avoidance? Part I: A Good Article to Read While Waiting
Like nearly every criminal lawyer, I eagerly await – and wait and wait – for the Supreme Court’s long overdue decision in Melendez-Diaz v. Massachusetts (07-591), the only case outstanding from the Court’s November sitting (per SCOTUSBLOG). The case addresses the prosecution’s use of crime laboratory reports against the accused without testimony by the person who performed the analysis and wrote the report. We need not get bogged down in the constitutional niceties at present, if only because its delayed appearance renders the case’s auguries especially hard to read.
So while we wait for a case that is certain to affect a staggering percentage of criminal cases, both pending appeal and awaiting trial, I highly recommend J. Thomas Sullivan’s timely article, Crawford, Retroactivity, and the Importance of Being Earnest, 92 Marq. L. Rev. 231 (Winter 2008). To grossly oversimplify things, in 2004 the Supreme Court held its nose and unceremoniously dropped 25 years of case law (and countless law review articles) into law’s dumpster. The discarded doctrine loosely regulated the prosecution’s use of hearsay under the Sixth Amendment’s confrontation clause; its flaccid “reliability” approach had green lighted nearly all forms of hearsay imaginable (and then some).