August 16, 2022

Bernick on Fourteenth Amendment Confrontation @evanbernick @NIU_Law

Evan D. Bernick, Northern Illinois University College of Law, has published Fourteenth Amendment Confrontation. Here is the abstract.
Crawford v. Washington was initially hailed as a triumph—a much-needed reinvigoration of the Sixth Amendment right of criminal defendants “to be confronted with the witnesses against [them].” It has few supporters today, and criticisms of it have taken on heightened importance in the wake of constitutional decisions involving the “incorporation” of the Bill of Rights against the states. In NYSRPA v. Bruen the Supreme Court flagged an “ongoing scholarly debate” about whether incorporated rights should be applied as they were understood in 1791—when the Bill of Rights was ratified—or in 1868—when the Fourteenth Amendment incorporated them. Bruen thus broadened the scope of historical inquiry into a diminished precedent. This is the first Article to explore the meaning of the right to confront witnesses during the antebellum struggle against slavery. It demonstrates that confrontation rights would emerge broader and stronger from an inquiry into their meaning in 1868. Crawford held that only “testimonial” out-of-court statements that were intended to aid the prosecution were originally understood to require an opportunity for face-to-face cross-examination of a witness. But this was not true in 1791, much less in 1868. By the time the Fourteenth Amendment was ratified, the general rule was that no out-of-court statements could be used by the prosecution to prove a defendant’s guilt absent an opportunity for prior cross-examination; and there was only one, narrow exception for dying declarations by homicide victims. Confrontation’s evolution is evinced, not only in commentaries and judicial decisions but in public arguments raised by abolitionists against the Fugitive Slave Act of 1850. Recovering this history is essential, not only to capturing confrontation’s original meaning but to realizing confrontation’s original goals today. These goals are not limited to the discovery of truth. They include protection of the dignity and liberty of even the unquestionably guilty; the provision of a fair chance to all defendants to resist punishment; and democratic contestation of the content and enforcement of criminal law. Most fundamentally, confrontation is about shifting power. Recovering this understanding would enable those most directly impacted by the U.S. criminal punishment system to resist and transform it.
Download the article from SSRN at the link.

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