In Giles v. California, 128 S.Ct. 2678 (2008), the Supreme Court issued the third Confrontation C... more In Giles v. California, 128 S.Ct. 2678 (2008), the Supreme Court issued the third Confrontation Clause opinion in its recent Crawford trilogy. In an opinion written by Justice Scalia, the Giles Court reiterated its interpretive approach in Crawford that the Confrontation Clause is ...
The Supreme Court's path breaking decision in Crawford v. Washington, 541 U.S 36 (2004), held... more The Supreme Court's path breaking decision in Crawford v. Washington, 541 U.S 36 (2004), held that admission of an extrajudicial testimonial statement by an unavailable declarant-witness violates the Confrontation Clause unless the defendant has an opportunity to cross-examine the declarant. Unfortunately, the determination of admissibility for the trial court judge has not been simplified after Crawford. The role of the trial court judge has now shifted from determining the reliability of the hearsay evidence (as was required before Crawford) to a determination of the testimonial nature of the declarant's statement. However, with some small exceptions, the Court in Crawford explicitly decided that it would leave for another day a more specific definition of the term testimonial, which would have helped to clarify how to address admissibility issues in many cases. This testimonial thicket presents a difficult set of issues for lower court judges making admissibility determin...
Page 1. Ohio v. Roberts, 448 US 56 (1980) Ohio v. Roberts, 448 US 56 (1980) established the analy... more Page 1. Ohio v. Roberts, 448 US 56 (1980) Ohio v. Roberts, 448 US 56 (1980) established the analytical framework that courts used for nearly twenty-five years to resolve the conflict between hearsay rules of evidence and the ...
Although long having a reputation for imposing the most restrictive rules in the nation on lawyer... more Although long having a reputation for imposing the most restrictive rules in the nation on lawyer advertising, Iowa gradually removed most of these restrictions over the decades. Until 2013, however, there were notable exceptions: a continuing instruction that information about lawyers, legal services, and legal fees be presented in a "dignified" fashion; a strict prohibition on claims by a lawyer about a level of quality or ability; and rigorous controls on the sound and visual content of broadcast media advertising. Now those specific restrictions have been replaced by (more uniform) language based on the American Bar Association's Model Rules of Professional Conduct. In doing so, the Iowa Supreme Court more directly connected the ethics rules on lawyer advertising to the public interest in preventing deceptive or misleading messages. The Authors, both of whom have served on drafting committees for the Iowa Rules of Professional Conduct, describe the 2013 revisions to the regulations governing communication by lawyers about legal services, with a particular focus on the elimination of the vague standard of "dignity" in lawyer advertising, the removal of the ban on making claims about a level of quality or ability in a lawyer's reputation, and the lifting of stringent restrictions on advertising through electronic media.
for their comments on the paper. 1 128 S. Ct. 2678 (2008). 2 In Crawford v. Washington, the Court... more for their comments on the paper. 1 128 S. Ct. 2678 (2008). 2 In Crawford v. Washington, the Court articulated a new approach, holding that admission of an extrajudicial testimonial statement by an unavailable declarant-witness violated the Confrontation Clause unless the defendant had an opportunity to cross-examine the declarant. 541 U.S. 36, 53-54 (2004). In Davis v. Washington, the Court began to provide a more comprehensive definition of "testimonial" by delineating which police interrogations invoke the protection of the Confrontation Clause. 547
The Supreme Court's pathbreaking decision in Crawford v. Washington 1 held that admission of an e... more The Supreme Court's pathbreaking decision in Crawford v. Washington 1 held that admission of an extrajudicial testimonial statement by an unavailable declarant-witness violates the Confrontation Clause unless the defendant has an opportunity to cross-examine the declarant. Unfortunately, the determination of admissibility for the trial court judge has not been simplified after Crawford. The role of the trial court judge has now shifted from determining the reliability of the hearsay evidence (as was required before Crawford) to a determination of the testimonial nature of the declarant's statement. However, with some small exceptions, the Court in Crawford explicitly decided that it would "leave for another day" a more specific definition of the term "testimonial," which would have helped to clarify how to address admissibility issues in many cases. 2 This testimonial thicket presents a difficult set of issues for lower court judges making admissibility determinations where there is a relationship between an unavailable witness-declarant and a criminal defendant. The relationship between a criminal defendant and a witness-declarant is often nuanced and complex, making trial appearance of the declarant problematic. For example, in cases where the declarant-witness is a victim of domestic violence or child abuse, courts face some of the most difficult issues in determining which hearsay statements implicate the Confrontation Clause. Davis v. Washington 3 provided an opportunity for the Court to address this issue in the context of two separately appealed domestic violence cases. To its credit, in Davis, the Court partially cleared the Crawford path by providing more guidance on the types of
In Giles v. California, 128 S.Ct. 2678 (2008), the Supreme Court issued a third Confrontation Cla... more In Giles v. California, 128 S.Ct. 2678 (2008), the Supreme Court issued a third Confrontation Clause opinion in its Crawford line of cases. In an opinion written by Justice Scalia, the Giles Court reiterated its interpretive approach in Crawford that the Confrontation Clause is “most naturally read as a reference to the right of confrontation at common law, admitting only those exceptions established at the time of the founding.” The Court’s decision purports to hold that a defendant does not forfeit his Sixth Amendment confrontation right when a judge determines that a wrongful act by the defendant made the witness unavailable to testify at trial, unless the judge finds that the defendant’s wrongful act was done with an intent to make the witness unavailable to testify. Justice Scalia’s majority opinion interprets intent to require purpose, only recognizing the forfeiture by wrongdoing exception to Sixth Amendment’s confrontation requirement when the defendant “engaged in conduct d...
In Giles v. California, 128 S.Ct. 2678 (2008), the Supreme Court issued the third Confrontation C... more In Giles v. California, 128 S.Ct. 2678 (2008), the Supreme Court issued the third Confrontation Clause opinion in its recent Crawford trilogy. In an opinion written by Justice Scalia, the Giles Court reiterated its interpretive approach in Crawford that the Confrontation Clause is ...
The Supreme Court's path breaking decision in Crawford v. Washington, 541 U.S 36 (2004), held... more The Supreme Court's path breaking decision in Crawford v. Washington, 541 U.S 36 (2004), held that admission of an extrajudicial testimonial statement by an unavailable declarant-witness violates the Confrontation Clause unless the defendant has an opportunity to cross-examine the declarant. Unfortunately, the determination of admissibility for the trial court judge has not been simplified after Crawford. The role of the trial court judge has now shifted from determining the reliability of the hearsay evidence (as was required before Crawford) to a determination of the testimonial nature of the declarant's statement. However, with some small exceptions, the Court in Crawford explicitly decided that it would leave for another day a more specific definition of the term testimonial, which would have helped to clarify how to address admissibility issues in many cases. This testimonial thicket presents a difficult set of issues for lower court judges making admissibility determin...
Page 1. Ohio v. Roberts, 448 US 56 (1980) Ohio v. Roberts, 448 US 56 (1980) established the analy... more Page 1. Ohio v. Roberts, 448 US 56 (1980) Ohio v. Roberts, 448 US 56 (1980) established the analytical framework that courts used for nearly twenty-five years to resolve the conflict between hearsay rules of evidence and the ...
Although long having a reputation for imposing the most restrictive rules in the nation on lawyer... more Although long having a reputation for imposing the most restrictive rules in the nation on lawyer advertising, Iowa gradually removed most of these restrictions over the decades. Until 2013, however, there were notable exceptions: a continuing instruction that information about lawyers, legal services, and legal fees be presented in a "dignified" fashion; a strict prohibition on claims by a lawyer about a level of quality or ability; and rigorous controls on the sound and visual content of broadcast media advertising. Now those specific restrictions have been replaced by (more uniform) language based on the American Bar Association's Model Rules of Professional Conduct. In doing so, the Iowa Supreme Court more directly connected the ethics rules on lawyer advertising to the public interest in preventing deceptive or misleading messages. The Authors, both of whom have served on drafting committees for the Iowa Rules of Professional Conduct, describe the 2013 revisions to the regulations governing communication by lawyers about legal services, with a particular focus on the elimination of the vague standard of "dignity" in lawyer advertising, the removal of the ban on making claims about a level of quality or ability in a lawyer's reputation, and the lifting of stringent restrictions on advertising through electronic media.
for their comments on the paper. 1 128 S. Ct. 2678 (2008). 2 In Crawford v. Washington, the Court... more for their comments on the paper. 1 128 S. Ct. 2678 (2008). 2 In Crawford v. Washington, the Court articulated a new approach, holding that admission of an extrajudicial testimonial statement by an unavailable declarant-witness violated the Confrontation Clause unless the defendant had an opportunity to cross-examine the declarant. 541 U.S. 36, 53-54 (2004). In Davis v. Washington, the Court began to provide a more comprehensive definition of "testimonial" by delineating which police interrogations invoke the protection of the Confrontation Clause. 547
The Supreme Court's pathbreaking decision in Crawford v. Washington 1 held that admission of an e... more The Supreme Court's pathbreaking decision in Crawford v. Washington 1 held that admission of an extrajudicial testimonial statement by an unavailable declarant-witness violates the Confrontation Clause unless the defendant has an opportunity to cross-examine the declarant. Unfortunately, the determination of admissibility for the trial court judge has not been simplified after Crawford. The role of the trial court judge has now shifted from determining the reliability of the hearsay evidence (as was required before Crawford) to a determination of the testimonial nature of the declarant's statement. However, with some small exceptions, the Court in Crawford explicitly decided that it would "leave for another day" a more specific definition of the term "testimonial," which would have helped to clarify how to address admissibility issues in many cases. 2 This testimonial thicket presents a difficult set of issues for lower court judges making admissibility determinations where there is a relationship between an unavailable witness-declarant and a criminal defendant. The relationship between a criminal defendant and a witness-declarant is often nuanced and complex, making trial appearance of the declarant problematic. For example, in cases where the declarant-witness is a victim of domestic violence or child abuse, courts face some of the most difficult issues in determining which hearsay statements implicate the Confrontation Clause. Davis v. Washington 3 provided an opportunity for the Court to address this issue in the context of two separately appealed domestic violence cases. To its credit, in Davis, the Court partially cleared the Crawford path by providing more guidance on the types of
In Giles v. California, 128 S.Ct. 2678 (2008), the Supreme Court issued a third Confrontation Cla... more In Giles v. California, 128 S.Ct. 2678 (2008), the Supreme Court issued a third Confrontation Clause opinion in its Crawford line of cases. In an opinion written by Justice Scalia, the Giles Court reiterated its interpretive approach in Crawford that the Confrontation Clause is “most naturally read as a reference to the right of confrontation at common law, admitting only those exceptions established at the time of the founding.” The Court’s decision purports to hold that a defendant does not forfeit his Sixth Amendment confrontation right when a judge determines that a wrongful act by the defendant made the witness unavailable to testify at trial, unless the judge finds that the defendant’s wrongful act was done with an intent to make the witness unavailable to testify. Justice Scalia’s majority opinion interprets intent to require purpose, only recognizing the forfeiture by wrongdoing exception to Sixth Amendment’s confrontation requirement when the defendant “engaged in conduct d...
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