SC Lawyer, Sept. 2004, #1. The Confrontation Clause and Justice Scalia: everything old is new again.

AuthorBy Warren Mo\xEFse

South Carolina Lawyer


SC Lawyer, Sept. 2004, #1.

The Confrontation Clause and Justice Scalia: everything old is new again

South Carolina LawyerSeptember 2004The Confrontation Clause and Justice Scalia: everything old is new againBy Warren MoïseSlowly they danced, intertwined in one another's arms, the tall and aristocratic Confrontation Clause looking deeply into the eyes of the hearsay rule, a diminutive southern belle. The romance had begun 24 years ago when the band began playing that beautiful beach music melody, Ohio v. Roberts, 448 U.S. 56 (1980). But now the band changes its tune. It breaks into a loud, brash rhumba - Crawford v. Washington, 124 S. Ct. 1354 (2004)! The dancers separate. The romance is over, although not this tortured analogy.

Crawford v. Roberts

In Crawford, the defendant's wife told him that the victim had assaulted her. They went to the victim's apartment where the accused stabbed the victim. At trial the prosecutor claimed that the stabbing was a unilateral assault, but the accused alleged he had done it in self-defense.

Both the defendant and his wife gave separate recorded statements to the police that were consistent, except that the wife's statement arguably contradicted her husband's claim of self-defense. The husband invoked the marital privilege so his wife could not testify at trial. Using the Roberts analysis, the judge found the wife's statement trustworthy, in part because she was being interrogated by the investigating police officers, who according to the judge, were "neutral." The prosecutor introduced the wife's statement, although the husband had no prior opportunity to cross-examine her.

Appellate review was a ping pong game. The Washington Court of Appeals reversed the trial judge, the Washington Supreme Court reversed the court of appeals and the U.S. Supreme Court reversed the Washington Supreme Court, throwing the Roberts analysis in the appellate trash can. In support, the Crawford Court cited a South Carolina Court of Appeals opinion dating back 160 years.

Tell mama (all about it)

How does Crawford work? Think of it as if Federal and South Carolina Rules of Evidence 801 through 807 regarding hearsay have been amended. Previously if a hearsay statement fell within a firmly rooted hearsay exception (or, for statements admitted under Federal Rule of Evidence 807, had...

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