Georgetown Center for the Constitution

Arguing that the Confrontation Clause was understood by the legal community as placing the burden on the prosecution to produce live witnesses at trial as an indispensable condition to obtaining a verdict against the accused. Contending, further, that this conclusion is bolstered by early Supreme Court interpretations, which centered around the production of live witnesses.

Arguing, given the significant weight placed on live testimony at the Founding and based on eighteenth century dictionaries and judicial proceedings, that the term “witnesses” in the Confrontation Clause refers specifically to witnesses testifying against the accused rather than evidence generally.

Critiquing the Court’s approach to identifying the original public meaning of “testimonial” hearsay under the Confrontation Clause. 

Examining the Founding-Era Marian bail and committal statutes, which were relied upon by Justice Scalia as evidence of the original meaning of the Confrontation Clause in his Crawford v. Washington analysis, to argue that Crawford is well-supported by historical evidence.

Contending that the Confrontation Clause was intended to ensure that defendants would have the opportunity to face and confront with questions all witnesses who take the stand. Arguing that “witnesses,” as understood by the ratifying public, is not limited to all out-of-court declarants captured by the hearsay rule.