UCLA School of Law

Ever since the majority of the Supreme Court, in Crawford v. Washington took the power to determine the reliability of hearsay statements out of the hands of judges and transferred it to the jury, prosecutors and their allies have tried to chip away at Crawford---even asking the Court to overrule Crawford. In 2011, in Michigan v. Bryant, five Harvard elitists gave the prosecutors what wanted they wanted, surreptitiously overruling Crawford. This article takes a first crack at unpacking the thirteen-factor Bryant test. Using the opinions of the majority and Justice Scalia’s outraged dissent, as well as the briefs and oral argument, it addresses a few of the issues that lower courts will face in attempting to make sense of a decision that rests more on bogus history and (as Justice Scalia says) the personal preferences of the judges than on any historically-sound policy.