Criminal trials in the United States are meant to ascertain the truth. But other societal values, such as fairness to the parties and public confidence in the integrity of the process, are at stake as well. Among the cornerstone rights to protect a defendant’s right to a fair trial is the right to confrontation. The right to confrontation enables a criminal defendant to exclude hearsay evidence from a trial when the defendant did not have an opportunity to cross-examine the witness. This right has undergone substantial changes and revisions over the last decade, both in the United States and abroad.
In Canada and Europe, criminal courts take a different approach to hearsay evidence. In Canada, the courts look at whether the hearsay evidence is necessary and reliable. In Europe, the courts look at whether it is the sole or decisive evidence against a defendant, and whether sufficient counterbalancing factors exist to justify its admission.
Each approach has its strengths and weaknesses. But there are important lessons that the U.S. Supreme Court can learn from the Canadian and European hearsay doctrines. This Article examines the systems in Canada and Europe and compares them to U.S. doctrines. Ultimately, this Article suggests that the Supreme Court should modify its current hearsay doctrine by adopting a modified European approach in order to protect a defendant’s right to a fair trial while also serving important, competing societal values.
Testimonial Statements, Reliability, and the Sole or Decisive Evidence Rule: A Comparative Look at the Right of Confrontation in the United States, Canada, and Europe,
Cath. U. L. Rev.
Available at: https://scholarship.law.edu/lawreview/vol67/iss1/8