Anchoring the Law in a Bed of Principle: A Critique of, and Proposal to Improve, American and Canadian Confrontation and Hearsay Law
54 Pages Posted: 10 Jan 2012 Last revised: 30 May 2012
Date Written: January 9, 2012
Abstract
As recent case law demonstrates, both American Sixth Amendment Confrontation Clause jurisprudence and the Canadian common law relating to hearsay evidence are conceptually problematic: the laws are, at times, internally incoherent, and are difficult to justify on the basis of legal principles. This paper will critique confrontation and hearsay law in the United States and Canada, respectively, by exposing the lack of principle underlying each body of law. Then, a principled basis for evidence law, in general, and hearsay/confrontation law, in particular, will be developed in order to provide a more stable foundation for hearsay and confrontation frameworks. Ultimately, it will be argued that the epistemic, truth-seeking goal of criminal evidence law would best be served by the broad admission, rather than exclusion, of all hearsay evidence. Furthermore, while fairness concerns are relevant to some rules of evidence, there are no valid fairness concerns operative in the context of hearsay/confrontation law that should displace the primary principle of facilitating and promoting epistemically accurate fact-finding in criminal trials. Finally, it will be suggested that any dangers associated with the broad admission of hearsay evidence could be mitigated through effective argument by counsel, and by appropriate cautions to the trier of fact about any weaknesses inherent in the evidence.
Keywords: Confrontation, Hearsay, cross-examine, Evidence, Epistemological, Crawford, Bryant, Davis, Melendez-Diaz, Khan, Starr, principled approach
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