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William R. Reed: Michigan v. Bryant: Originalism Confronts Pragmatism
Michael Ramsey

William R. Reed has posted Michigan v. Bryant: Originalism Confronts Pragmatism (Denver University Law Review, Vol. 89, No. 1, 2012) on SSRN. Here is the abstract:

The Confrontation Clause of the Sixth Amendment guarantees those accused of crimes the right to confront the witnesses against them. The scope of that right, however, is still being calibrated. In fact, the Supreme Court’s interpretation of the Confrontation Clause has undergone major revisions in recent decades, evolving from the “reliability” standard of Ohio v. Roberts to the more rigid “testimonial” rule of Crawford v. Washington. Recently, in Michigan v. Bryant, the Supreme Court refined the analysis used to determine what constitutes testimony and thereby implicates the Confrontation Clause. The application of this new analysis will inevitably affect the operation of the Confrontation Clause, and the balance between the rights of victims and the rights of the accused in criminal law.

Part I of this Comment provides an overview of modern Confrontation Clause jurisprudence, with an emphasis on the watershed holding in Crawford. Part II summarizes the facts, holding, and reasoning of the majority opinion in Bryant, along with the reasoning of the concurring opinion and dissenting opinions. Part III explores the contours of the primary purpose analysis and the ongoing emergency exception articulated in Bryant, and argues that the combined effect narrows the scope of the Confrontation Clause while expanding judicial discretion. This Comment concludes that despite powerful pragmatic arguments for this shift away from emphasizing the rights of the accused, the Bryant decision ultimately subverts the aims of the Confrontation Clause. Lastly, this Comment proposes changes to narrow and define the ongoing emergency exception, and alterations to the primary purpose analysis to promote simplicity and objectivity in confrontation jurisprudence as it continues to evolve.