Sunday, June 27, 2010

Professor David Sklansky on the Confrontation Clause

In an interesting but excessively long article, "Hearsay's Last Hurrah," 2009 Supreme Court Review 1, Professor David Sklansky makes the important point that the decoupling of hearsay law and the Confrontation Right by Crawford v. Washington, 541 U.S. 36 (2004), has impeded or threatens to impede the development of an interpretation of the Confrontation Clause as a guarantee of the right of a criminal defendant to challenge adverse evidence. I agree.

But I am not so sure that the hearsay rule deserves all the scorn that Professor Sklansky heaps upon it. I keep thinking of prisoners in Guantanamo who may be held there on the strength of an absent U.S. soldier's statement that some village elder in Afghanistan told the soldier, through an absent interpreter, that some member of the village had brought the detainee, a goatherd, to the elder after the village member heard, he said, the goatherd say, "I have killed Americans in this holy war." Confrontation aside, is there reason to think that such evidence is likely to be so unreliable that not even a military commission should consider it?

But to give Sklansky his due, he does seem to think that a hearsay rule that works largely as a rule of preference makes some sense. But suppose the village elder, the translator, the member of the village, and the goatherd are now all dead -- as a result of the war in Afghanistan.
But perhaps Sklansky would approach the goatherd problem by analyzing whether the Guantanamo detainee has an adequate opportunity to challenge the evidence against him. I'm not sure how Sklansky would attack the goatherd problem. Perhaps I will re-read the article in an attempt to find out. (I only skimmed his article and perhaps he addresses my question.)

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

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