Written by Tom Lininger
Associate professor, University of Oregon School of Law (B.A., Yale; J.D., Harvard).
Professor Lininger has been a member of the Oregon faculty since 2003, where he teaches evidence, legal ethics, criminal procedure and alternative dispute resolution. Before he came to the U of O, Professor Lininger worked as a federal prosecutor, as counsel to a subcommittee in the U.S. Senate, and as a litigation attorney with the law firm Skadden, Arps, Slate, Meagher and Flom in San Francisco.
For over two decades, the Supreme Court’s interpretation of the Confrontation Clause set the limits for prosecutors’ use of hearsay. In a series of decisions from 2004 to 2007, however, the Supreme Court abdicated this role with respect to a large category of hearsay deemed “nontestimonial.” State legislatures should 
now fill the void. State law should protect confrontation rights in certain situations to which the Supreme Court no longer applies the Confrontation Clause.
A hypothetical example shows what’s at stake. Imagine that the government prosecutes a defendant for an alleged assault. The accuser does not testify at the trial. Instead of calling the accuser as a witness, the government calls a police officer who would repeat an out-of-court statement that the accuser made to the officer. Should the judge allow this evidence, or should the judge bar it because the defendant cannot confront the accuser in court?
