The Dignitary Confrontation Clause

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The Dignitary Confrontation Clause

March 01, 2022 | 97 Wash. L. Rev. 207

Erin Sheley

Abstract: For seventeen years, the Supreme Court’s Confrontation Clause jurisprudence has been confused and confusing. In Crawford v. Washington (2004), the Court overruled prior precedent and held that “testimonial” out-of-court statements could not be admitted at trial unless the defendant had an opportunity to cross-examine the declarant, even when the statement would be otherwise admissible as particularly reliable under an exception to the rule against hearsay. In a series of contradictory opinions over the next several years, the Court proceeded to expand and then seemingly roll back this holding, leading to widespread chaos in common types of cases, particularly those involving statements to law enforcement officers and written affidavits of crime lab technicians. In these cases, for apparently pragmatic reasons, various pluralities of the Court appear to have redefined “testimonial” to mean, at least in part, “potentially unreliable,” thereby contradicting the goal of Crawford.

To help courts resolve this confusion, this Article proposes an overlooked, residual constitutional value, distinct from reliability, implicated in cases where defendants cannot confront witnesses who testify against them. Integrating historical and narrative analysis of the confrontation right’s origins in Anglo-American law with the psychological literature on guilt and deceit, it argues that a criminal defendant has a relational interest in asserting their moral presence against a potentially deceitful witness. It further argues that this interest harmonizes with the contemporary function of dignity in criminal constitutional jurisprudence. The Article concludes that criminal defendants have a distinct dignitary interest in confronting witnesses against them. It urges courts to untangle the contradictory web of Crawford and its progeny by considering the dignitary dimensions of the Confrontation Clause.

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