Citation

Capra DJ. Columbia Law Rev. 2005; 105(8): 2409-2450.

Copyright

(Copyright © 2005, Columbia University School of Law)

DOI

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PMID

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Abstract

The process of evidentiary rulemaking for the federal courts is, by design, slow and painstaking. Rulemaking is more deliberate in its pace than the process used by the Supreme Court to generate case law. Occasionally this can mean that a Supreme Court opinion can subvert rulemaking that the Court, somewhat ironically, is responsible for under the terms of the Enabling Act. This Essay's author-the Reporter to the Judicial Conference Advisory Committee on Evidence Rules-considers a recent example of Supreme Court decisionmaking that trumped rulemaking: the Court's decision in Crawford v. Washington, which brought to a halt the Advisory Committee's attempt to amend Rule 804(b)(3), the hearsay exception governing admissibility of accomplice confessions and other declarations against penal interest. The amendment to the Rule was designed to bring the hearsay exception into compliance with the then-constitutional limitations imposed by the Confrontation Clause; the Crawford Court derailed three years of work on the amendment by substantially revising its interpretation of that Clause. But Professor Capra concludes that the roadblock imposed by Crawford is only temporary, and that there is still a need for an amendment to Rule 804(b)(3). Even after Crawford, the amendment is needed to bring the rule into compliance with the Confrontation Clause, and, more broadly, to provide a fair application of the hearsay rules, a responsibility that the Court in Crawford left in the hands of the rulemakers.