Journal of Law & Policy Program at Brooklyn Law School Includes Prominent Scholars, Judges, and Practitioners
Participation in the Brooklyn Law School Forum
On November 11, 2011, Professor Brooks Holland participated in a conference at a Brooklyn Law School, “Crawford & Beyond III,” focusing on the development of confrontation rights since the U.S. Supreme Court’s seminal decision in Crawford v. Washington, 541 U.S. 36 (2004).
The program was organized around four panel discussions. Panels included criminal procedure and evidence law experts from Stanford Law School, U.C. Berkeley School of Law, the University of Michigan Law School, U.C.L.A. Law School, the University of North Carolina School of Law, and Brooklyn Law School, as well as members of the New York State Judiciary and prosecution and defense bars.
Sitting on two panels during the conference programs, Professor Holland criticized the recent trajectory of confrontation jurisprudence and questioned whether the Supreme Court has identified any theory of confrontation rights that corresponds to how modern criminal cases are tried.
Highlighting the Shift in Confrontation Rights
On February 16, 2012, Professor Holland presented his working paper from this conference, Crawford & Beyond: How Far Have We Traveled from Roberts After All?, to Gonzaga Law School faculty and students, as well as attorneys from the federal bar for the Eastern District of Washington.
In this paper, Professor Holland asserts that the Supreme Court’s promise of enhanced confrontation rights in Crawford has been undermined by the Court’s recent confrontation decisions, such as Michigan v. Bryant, 131 S. Ct. 1143 (2011). Professor Holland theorizes that the Supreme Court’s shift away from the promise of Crawford reflects Justices’ effort to narrow the definition of “testimonial” hearsay, which triggers confrontation rights under Crawford, to avoid Crawford’s inflexible exclusionary rule. Professor Holland argues that confrontation jurisprudence instead should limit judicial discretion to define the right of confrontation itself, but allow some discretion in how courts enforce that right when hearsay declarants are unavailable to testify at trial.