Wednesday, February 16, 2011

New Faculty Publication: Peter Nicolas on the Right to Confront Hidden Declarants

Peter Nicolas, But What If the Court Reporter Is Lying? The Right to Confront Hidden Declarants Found in Transcripts of Former Testimony, 2010 BYU L. Rev. 1149-93 (2010), available at

Professor Nicolas's latest article explores the admissibility of former testimony as an exception to the hearsay rule, examined through the lens of U.S. Supreme Court decisions Crawford v. Washington and Melendez-Diaz v. Massachusetts.

He addresses the hidden declarant issue and its testimonial nature. He reviews the historical foundation of this topic in England and the U.S. and proposes practical solutions consistent with the Confrontation Clause.
Not only do transcripts of former testimony present an interesting layered hearsay problem that has all the makings of a classic law school hypothetical, but, after Crawford and Melendez-Diaz, it is clear that they present a serious Confrontation Clause problem as well.

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