![handle is hein.journals/mlro113 and id is 1 raw text is:
COME BACK TO THE BOAT, JUSTICE BREYER!
Richard D. Friedman*
INTRODUCTION
I want to get Justice Breyer back on the right side of Confrontation
Clause issues.
In 1999, in Lilly v. Virginia,' he wrote a farsighted concurrence, making
him one of the first members of the Supreme Court to recognize the
inadequacy of the then-prevailing doctrine of the Confrontation Clause.
That doctrine, first announced in Ohio v. Roberts,2 was dependent on
hearsay law and made judicial assessments of reliability determinative. In
Crawford v. Washington,' the Court was presented with an alternative
approach, making the key inquiry whether the statement in question was
testimonial in nature. During the oral argument, Justice Breyer seemed to
endorse the test I had articulated, in an amicus brief, for what makes a
statement testimonial-[W]ould a reasonable person in the position of
declarant anticipate that the statement would likely be used for evidentiary
purposes?4 Ultimately, he was one of seven members of the Court to
support Crawford's dramatic adoption of a testimonial approach. And two
years later, in Hammon v. Indiana (decided with Davis v. Washington5),
Justice Breyer was one of eight justices to treat as testimonial a woman's
statement accusing her husband of assaulting her, given that it was made to a
police officer in the family living room a considerable time after the alleged
event, while another officer held the accused at bay. (I like to think that I
argued the case for the accused because I believed this was obviously right,
not the other way around.)
But consider what Justice Breyer has done more recently. In 2011, he
helped form a majority in Michigan v. Bryant,6 taking a view far more
restrictive than that reflected in Hammon of what is testimonial in the
context of a fresh accusation. And three times over the last five years-in
* Alene and Allan F. Smith Professor of Law, University of Michigan Law School.
1. 527 U.S. 116 (1999).
2. 448 U.S. 56 (1980).
3. 541 U.S. 36 (2004).
4. Transcript of Oral Argument at 9-10, Crawford, 541 U.S. 36 (No. 02-9410).
5. 547 U.S. 813 (2006).
6. 131 S. Ct. 1143 (2011).
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