360
Opinion of Thomas, J.
of evidence to be given infrajudicially." 5 J. Wigmore, Evidence § 1397, p. 159 (J. Chadbourn rev. 1974) (footnote omitted; emphasis modified).
The Wigmore view was endorsed by Justice Harlan in his opinion concurring in the result in Dutton v. Evans, supra, at 94. It also finds support in the plain language of the Clause. As Justice Scalia recently observed:
"The Sixth Amendment does not literally contain a prohibition upon [hearsay] evidence, since it guarantees the defendant only the right to confront the 'witnesses against him.' As applied in the Sixth Amendment's context of a prosecution, the noun 'witness'—in 1791 as today—could mean either (a) one 'who knows or sees any thing; one personally present' or (b) 'one who gives testimony' or who 'testifies,' i. e., '[i]n judicial proceedings, [one who] make[s] a solemn declaration under oath, for the purpose of establishing or making proof of some fact to a court.' 2 N. Webster, An American Dictionary of the English Language (1828) (emphasis added). See also J. Buchanan, Linguae Britannicae Vera Pronunciatio (1757). The former meaning (one 'who knows or sees') would cover hearsay evidence, but is excluded in the Sixth Amendment by the words following the noun: 'witnesses against him.' The phrase obviously refers to those who give testimony against the defendant at trial." Maryland v. Craig, 497 U. S. 836, 864-865 (1990) (dissenting opinion).
The difficulty with the Wigmore-Harlan view in its purest form is its tension with much of the apparent history surrounding the evolution of the right of confrontation at common law and with a long line of this Court's precedent, discussed below. For those reasons, the pure Wigmore-Harlan reading may be an improper construction of the Confrontation Clause.
Page: Index Previous 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 NextLast modified: October 4, 2007