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By Jerry P. Coleman, USF Adjunct Professor (Evidence, Trial Advocacy, Criminal Externships) and San Francisco Special Assistant District Attorney
September, 2018
Ask any second-year law student just finishing Evidence class and they can tell you all about the hearsay rule and its many exceptions, which serve to establish the reliability of second-hand evidence in trials. From 1980 until 2004 (which constituted the lion’s share of my prosecutorial practice in San Francisco), criminal trial attorneys seeking to introduce an out-of-court statement by an unavailable declarant only had to contend with finding the appropriate firmly-rooted hearsay exception to demonstrate that such statement had adequate “indicia of reliability”.[1]But beginning with his seminal opinion in Crawford v. Washington(2004) 541 U.S. 36, Justice Antonin Scalia penned a jurisprudential oeuvre that created significant hurdles for prosecutors only in eliciting even reliable hearsay, by requiring the state to deal with an additional defense objection based on the defendant’s Sixth Amendment right to confront witnesses.[2] Now, nearly a decade and a half later, not only has this growing body of Sixth Amendment law continued to evolve and provide new avenues for the defense to object to out-of-court statements, but it has also required law school evidence professors to add at least an entire class of essentially constitutional law and criminal procedure to their curricula.