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Davis v. Washington: Confrontation Wins the Day
By Timothy O'Toole,Catharine Easterly
The Supreme Court’s decision in Davis v. Washington1 was not only a big
win for NACDL (which participated extensively in the litigation both
before and after the Court granted certiorari), it was a big win for
everyone who believes there is value in conducting criminal trials in
courtrooms where witnesses must appear before the defendant and the
fact-finder and be subjected to cross-examination. The Sixth Amendment
seems to guarantee this practice, but the Confrontation Clause has had a
rough time of it over the past 30 years.
Under the rule of Ohio v. Roberts2 — where unconfronted out-of-court
statements were admitted as a matter of course so long as they were
deemed sufficiently reliable — in-court confrontation was reduced from a
bedrock, categorical constitutional guarantee to an often deemed
unimportant matter of judicial discretion. Then, in Crawford v.
Washington,3 the Supreme Court overruled Roberts and announced that when
the declarant of an out-of
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