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Hastings International and Comparative Law Review

Authors

Lindsay Hoopes

Abstract

In the United States, the right to confrontation is the hallmark fair trial protection. Most foreign and international jurisdictions have adopted the right to confrontation as an integral component of their fair trial protections, modeling the right after the U.S. Constitution's Sixth Amendment. Just as any other right, the right to confrontation requires society to strike a balance between a defendant's right to a fair trial with other competing rights in the criminal justice system: namely, victim's and society's right to adjudication of criminal matters.

Historically, the United States allowed abrogation of the right to confrontation when evidence was sufficiently reliable. Since the Supreme Court's decision in Crawford v. Washington, the United States established a per se right to confrontation. This fundamental shift has created a significant imbalance in the criminal justice system. The scale now favors the defendant to the detriment of victims and society as a whole.

A comparative analysis of foreign and international jurisdictions' treatment of the right demonstrates that many foreign communities have struck a more harmonious balance between the competing tensions within the criminal justice system, while simultaneously remaining more faithful to the original underpinnings of the Sixth Amendment. Although instructive, the United States does not need to model the right to confrontation after these international models; U.S. jurisprudential history itself supports and compels that the U.S. overrule Crawford and return balance to the criminal justice system.

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