Reconceptualizing Confrontation After Davis

 In this response, Professor Buel expounds on some of the constitutional issues that Professor Lininger discussed in his piece.  By extending Sixth Amendment protection to defendant conduct, Buel argues that the Court is going beyond its intended meaning of simply preventing the state from denying defendants an opportunity to confront their accusers.  Furthermore, Buel notes that the Court’s new bright line test for testimonial and nontestimonial hearsay creates more confusion than clarity by imparting a difficult temporal element that is virtually impossible for courts to utilize in a meaningful and consistent manner.

In this response, Professor Miccio critiques Professor Lininger’s article for accepting the implications of the Supreme Court’s recent decisions for witness unavailability and social accountability.  More specifically, Professor Miccio suggests that we should question three aspects of the Court’s Confrontation Clause jurisprudence: first, she illustrates the problems with equating a trial with a search for truth; second, she argues that we should not view confrontation as synonymous with a battered woman’s resistance of her attacker; and finally, she questions the Court’s definition of an “emergency” with respect to testimonial and nontestimonial statements.  Given the implications of accepting the Court at face value on these points, Professor Miccio then analyzes Professor Lininger’s proposals for legislative action, and suggests that effective legislative reform requires accountability.