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Another look at the Craig-Crawford disjuncture?

By Richard D. Friedman

Crawford did not purport to disturb Maryland v. Craig, 497 U.S. 836 (1990), which allowed a prosecutor in some circumstances to present the testimony of a child by electronic transmission from a place outside the physical presence of the accused.  But Craig was based on the flexible approach to the Confrontation Clause of Ohio v. Roberts, 448 U.S. 56 (1980), which Crawford overturned.  It is not surprising that Justice Scalia, the author of Crawford, wrote a bitter dissent in Craig, a 5-4 case, and that Justice O'Connor, the author of Craig, was one of two members of the Court not to join the majority opinion in Crawford:  The two opinions reflect radically different views of the Confrontation Clause.  Up til now, the Supreme Court has declined to discuss what the standing of Craig is in light of Crawford.  It has certainly had opportunities.  For example, see here and here. Now Judge Jeffrey Sutton of the Sixth Circuit has written a concurrence in a decision, United States v. Cox, strongly suggesting that the Supreme Court ought to take the matter up.   We'll see what happens. The justices won't necessarily take up Judge Sutton's suggestion, but his is a voice to which they will likely pay attention.

Cox involves electronically transmitted testimony by a third-grader and a sixth-grader.  Other child witnesses evidently testified live at the trial.

Full post as published by The Confrontation Blog on September 15, 2017 (boomark / email).