ARTICLE: THE END OF THE "VIRTUALLY CONSTITUTIONAL"? THE CONFRONTATION RIGHT AND CRAWFORD V. WASHINGTON AS A PRELUDE TO REVERSAL OF MARYLAND V. CRAIG Skip over navigation
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Copyright (c) 2006 Regent University
Regent University Law Review

ARTICLE: THE END OF THE "VIRTUALLY CONSTITUTIONAL"? THE CONFRONTATION RIGHT AND CRAWFORD V. WASHINGTON AS A PRELUDE TO REVERSAL OF MARYLAND V. CRAIG

2006 / 2007

19 Regent U.L. Rev. 469

Author

David M. Wagner *

Excerpt

I. INTRODUCTION

The Confrontation Clause is about the criminal defendant's right "to be confronted with the witnesses against him." 1 The Supreme Court reaffirmed as much in Coy v. Iowa, 2 holding: "We have never doubted, therefore, that the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact." 3 However, like all constitutional rules designed to restrain government, a temptation exists to set it aside when there is a "very good reason." Officially, the Supreme Court's term for "very good reason" is "compelling state interest," 4 by which the Court, in its view, uses that reason or interest to justify government conduct that otherwise is clearly unconstitutional. On that basis, the Court has allowed, on occasion, exceptions to collateral rights thought to be rooted in the Confrontation Clause. 5 But when confrontation itself has been at issue, the Court has not used this technique, but rather a "totality of the circumstances" approach. This approach differs from "compelling state interest" mainly because it is more difficult to pin down.

A forthright holding that the government may deny a criminal defendant a confrontation with his accuser because a "compelling state interest" is present, in, say, combatting child abuse, would invite obvious and well-founded objections of the "slippery slope" variety. Arguably, the state does have a compelling state interest in combating all violent crimes, child abuse among the rest. Under this test, however, constitutional guarantees of due process in ...
 
 
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