The heart of the debate over the purpose of the Confrontation Clause is the manner in which confrontation was intended to secure a defendant’s rights—either through procedural fairness or ensuring evidentiary reliability. The eventual direction the Supreme Court takes will depend, in large part, on which of these visions of the Confrontation Clause ultimately prevails. Michigan v. Bryant marked a potential step in the direction of the Ohio v. Roberts vision, and Ohio v. Clark does not appear to have departed from the course set in Bryant. Thus, while Crawford v. Washington marked a sea change in the Court’s confrontation jurisprudence, the Court’s recent decisions—including Clark—appear to have chipped away at Crawford’s categorical holding: testimonial statements offered by an unavailable declarant are inadmissible unless the defendant has had a prior opportunity for cross-examination. It remains to be seen how much of Crawford’s holding will ultimately survive.
Peter M. Torstensen Jr.,
Ohio v. Clark ,
Notre Dame L. Rev. Online
Available at: http://scholarship.law.nd.edu/ndlr_online/vol91/iss3/2