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 (2010), https://digitalcommons.law.uw.edu/faculty-articles/290
BYU Law Review
In Part I of this Article, I will illustrate the hidden declarant issue through a series of hypotheticals that highlight both the hearsay and Confrontation Clause problems associated with proving former testimony. Next, in Part II, I will demonstrate that treating the hidden declarant's statements as testimonial, and thus subject to exclusion on Confrontation Clause grounds, is consistent with Crawford and its progeny.
I will then demonstrate, in Part III, that historically, in both England and the United States, the accused had the right to confront hidden declarants, and that the historical exception for former testimony does not extinguish the right of the accused to confront them. Finally, although such an interpretation of the Confrontation Clause raises significant practical problems akin to those raised by decisions like Melendez-Diaz v. Massachusetts, I will propose various practical solutions that are consistent with the Confrontation Clause in Part IV.