3 Confrontation and hearsay: historical background (FRE 801–807)
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This chapter discusses the historical background of the confrontation principle— that witnesses should testify face to face with adverse parties, under oath and subject to cross-examination, and if reasonably possible at trial— and the rule against hearsay, which is an outgrowth of the principle. The confrontation principle has deep and broad roots, and it is reflected in the Confrontation Clause of the Sixth Amendment to the United States Constitution. Because it is a procedural rule about how witnesses testify, it is limited in scope, to testimonial statements, but categorical in nature. The rule against hearsay is much broader but far more defeasible. In its modern form, which did not begin to emerge until the late 18th century, it presumptively excludes any out-of-court statement offered to prove the truth of a proposition it asserts. It is, however, subject to many exemptions, and in much of the common-law world its force has been severely limited by statute. The growth of the hearsay rule tended to occlude the confrontation principle. But Crawford v. Washington (U.S. 2004) recovered the essential meaning of the Confrontation Clause, as a guarantee of the confrontation principle with respect to prosecution evidence. And the European Court on Human Rights has developed a basic right of confrontation under Article 6(3)(d) of the European Convention on Human Rights. It is thus important to recognize and maintain analytical separation of the hearsay rule and the confrontation principle.

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