The author's SSRN abstract of the paper states:
In opinions for the Court in Crawford v. Washington (2004) and Davis v. Washington (2006), Justice Scalia asserted that the Framers' design for regulating hearsay evidence under the Sixth Amendment Confrontation Clause was limited to testimonial out-of-court statements, but that the Framers did not intend the Clause to apply to less formal nontestimonial hearsay statements at all.Professor Davies is a formidable legal historian. It will be interesting to see how the Supreme Court responds to his challenge.
This article documents that this claim is merely another instance of fictional originalism. It begins by pointing out that although Justice Scalia endorsed construing the confrontation right according to those [hearsay] exceptions established at the time of the founding, he did not actually survey the framing-era authorities regarding the treatment of criminal hearsay.
The article then examines the treatment of hearsay in the framing-era treatises and justice of the peace manuals used in framing-era America and documents that hearsay was defined to include all unsworn out-of-court statements. It also documents that only two forms of out-of-court statements could be admitted as evidence of a defendant's guilt: the the written record of a sworn Marian witness examination of a person who died prior to trial (which was not hearsay) and the dying declaration of a murder victim (which was hearsay). The article also identifies two other limited-purpose hearsay exceptions that did not permit hearsay to be used as direct proof of a defendant's guilt: one allowed hearsay to corroborate a witness's trial testimony and the other allowed hearsay to prove the general existence of a conspiracy (but not the defendant's involvement). Otherwise, the article concludes that hearsay statements, including those that could be deemed nontestimonial under Crawford, were banned by framing-era criminal evidence doctrine.
The article also documents that, contrary to statements in Crawford, the confrontation right was understood to require the exclusion of hearsay statements at the time of the framing. Thus, contrary to Justice Scalia's analysis, the Framers understood that the ban against criminal hearsay was a component of the confrontation right. In sum, the testimonial/nontestimonial hearsay distinction announced in Crawford and Davis contavenes [sic] the settled evidentiary principles that shaped the original meaning of the Confrontation Clause.
N.B. I need to review Davies' papers to see how he thinks Confrontation Era courts dealt with certain kinds of out-of-court statements. For example: a witness proposes to testify that the accused murderer, as he stabbed the alleged victim, shouted, "May you burn in Hades!" Perhaps Davies takes the view that Framing Era judges (like modern judges) would not have characterized such statements as hearsay and that they therefore would not even have considered excluding evidence of out-of-court statements such as these? (Under modern law, even if such a statement -- e.g., "Die, you scum!" -- were considered hearsay, it would fall under the exemption or exception for party-admissions).