53 U.S.F. L. Rev. F. 1 (2019)

handle is hein.journals/usfor53 and id is 1 raw text is: 








How a Conservative Supreme Court

Justice Rocked the Criminal Evidence

World by Giving Defendants New

Constitutional Rights: The Legacy of

2004's Crawford v. Washington


                                              By JERRY P. COLEMAN*


September 2018

ASK ANY SECOND-YEAR LAW STUDENT just finishing Evidence class and
they can tell you all about the hearsay rule and its many exceptions, which
serve to establish the reliability of second-hand evidence in trials. From 1980
until 2004 (which constituted the lion's share of my prosecutorial practice in
San Francisco), criminal trial attorneys seeking to introduce an out-of-court
statement by an unavailable declarant only had to contend with finding the
appropriate firmly-rooted hearsay exception to demonstrate that such
statement had adequate indicia of reliability.1 But beginning with his
seminal opinion in Crawford v. Washington (2004) 541 U.S. 36, Justice
Antonin Scalia penned a jurisprudential oeuvre that created significant
hurdles for prosecutors only in eliciting even reliable hearsay, by requiring
the state to deal with an additional defense objection based on the
defendant's Sixth Amendment right to confront witnesses.2 Now, nearly a
decade and a half later, not only has this growing body of Sixth Amendment
law continued to evolve and provide new avenues for the defense to object
to out-of-court statements, but it has also required law school evidence
professors to add at least an entire class of essentially constitutional law and
criminal procedure to their curricula.
    In Crawford, Scalia reached back not just to the original text of the
Constitution and criminal practice during the founding era of the Republic,
but to the infamous 1603 trial of Sir Walter Raleigh, convicted and executed


    *  USF Adjunct Professor (Evidence, Trial Advocacy, Criminal Externships) and San
Francisco Special Assistant District Attorney
    1. Ohio v. Roberts, 448 U.S. 56, 66 (1980).
    2. Crawford v. Washington, 541 U.S. 36, 68 (2004).

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