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The Champion

March 2007 , Page 20 

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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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