Today the Supreme Court heard argument in Ohio v. Clark.  The Confrontation Clause of the Sixth Amendment limits the use of out-of-court statements of people who do not testify as witnesses in the criminal trial, but exactly where that line is drawn has been a problem for a long time.  From the 1980 decision in Ohio v. Roberts until the 2004 decision in Crawford v. Washington, the focus was on the reliability of the statement.  Crawford threw that overboard and asked if a statement was "testimonial."  Under this rule, the reliability of the statement is at best irrelevant to whether it is excluded by the Confrontation Clause, and often the rule operates perversely, letting less reliable statements in while excluding more reliable ones.

Some of the Justices have been uncomfortable with that ever since, and that discomfort showed in today's argument over the statement of an abused child to his teacher.

So far, Justice Thomas has been alone in his view that the Confrontation Clause applies narrowly to the kinds of practices it was specifically aimed at, such as the use of depositions in lieu of live testimony.  In this view, the admissibility of most hearsay statements would be questions of state evidence law, not a federal constitutional mandate.

I think Justice Thomas has it right, and my brief takes a historical view consistent with his thesis.  There was no discussion of this view in today's argument, but the Justices seem uncomfortable with the status quo, and CJLF's arguments sometimes appear in the opinions without having been featured at oral argument.  We'll see.