11 A possible transformation of hearsay doctrine
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This chapter presents the author’s reflections on how the structure of American hearsay law— or for that matter the law of any other common-law jurisdiction— might be beneficially transformed. An essential predicate is independent protection of the confrontation right of criminal defendants, which Crawford and decisions under the European Convention make possible.

With respect to non-testimonial hearsay, if live testimony of the declarant would be more probative than prejudicial, then presumably hearsay would be as well and if the declarant is unavailable the hearsay usually ought to be admitted. If the declarant is available but the proponent chooses not to present her, then the hearsay still ought to be presumptively admissible, assuming it is more probative than prejudicial. But decision would be aided if the court adopts a procedure under which, if the opponent, having been given notice of the proponent’s intention to use a hearsay statement, produces the declarant, willing and able to testify, then the proponent must produce the declarant as a witness or forgo use of the statement.

If testimonial hearsay is offered against a criminal defendant, then the confrontation right comes into play. But if it is offered against another party, it may be appropriate to apply the same procedures and standards as suggested above for non-testimonial hearsay, though perhaps with somewhat greater readiness to exclude.

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