The (Futile) Search for a Common Law Right of Confrontation: Beyond Brasier's Irrelevance to (Perhaps) Relevant American Cases

Abstract

After Crawford v. Washington asserted that the Confrontation Clause constitutionalized the common law right of confrontation, cases have been suggested that illustrate that right. This short essay considers whether the 1779 English case Rex v. Brasier is such a decision, as some contend. The essay concludes that Brasier says nothing about the right of confrontation and points to a comparable framing-era, American case that indicates that general rules about hearsay and confrontation were not at issue. The essay maintains that if the historical understandings of the right of confrontation and hearsay are to control the Confrontation Clause, then framing-era, American cases about hearsay should be analyzed, and it discusses one such case, The Ulysses.

Keywords: Criminal Procedure, Evidence, Constitutional Law, Hearsay, Confrontation, Legal History