Richard D. Friedman

Stalking the Squeeze: Understanding Commodities Market Manipulation

Commodities manipulations often have spectacular results. Not all dramatic upheavals in the commodities markets result from manipulation, however; indeed, sometimes when prices rise sharply the market is performing one of its most important functions, cushioning the impact of external forces that might otherwise have been far more disruptive.1 Thus, attempting to discern the line between a manipulated

Some Modest Proposals on the Vice-Presidency

If we had to do it all over again, we almost certainly would not create the system we currently have. We cannot undo history, but we do have a very strong incentive to develop a better system of succession to the presidency. Whom we choose as vice-president is a matter of great national importance. Nine men have succeeded to the presidency from the second spot, five of them since 1900.2 In this century,

Dial-in Testimony

This article shows that it is now common practice for some prosecutors to prove a crime by offering the recording of a 911 call or evidence of statements made by the caller to a police officer who responded to the call. It then uses this phenomenon to examine defects in the Supreme Courts current approach to the confrontation right and to explore the possibility of re-conceptualizing the right in a way that would restore it to its rightful place. Statements made in 911 calls or in follow-up conversations are often admitted at trial to prove the truth of the callers narration of a crime allegedly committed against him or her, even if the caller does not testify at trial and the prosecution has failed to account for his or her absence. Indeed, the evidence is often admitted even if the caller does testify but gives an account fundamentally inconsistent with his or her earlier one, and even if the inconsistency is no surprise to the prosecution. Changes in the way that domestic violence is treated by the criminal justice system are an important factor underlying this development. Prosecutors often pursue charges even without cooperation of the alleged victim by introducing the complainants statements made in 911 calls and to responding officers, and courts have been receptive. Such treatment by police, prosecutors, and judges means that callers reporting an alleged crime to 911 are generally aware that they are effectively reporting to law enforcement authorities; often the caller is also aware that he or she is creating evidence for possible use at trial. Turning to doctrine, the article shows that the confrontation right emerges out of the basic concept that testimony must be given under prescribed conditions, among which are that it must be under oath and in the presence of the accused. What is now known as the excited utterance exception to the hearsay rule at first developed in adherence to this principle, but then departed from it; that exception now provides the principal doctrinal basis for excepting from the rule the type of statements that this article addresses. And under the current jurisprudence of the Supreme Court, if a statement satisfies the hearsay rule then the Confrontation Clause is unlikely to create any obstacle to admission. Current confrontation doctrine, geared to improving the reliability of evidence, is fundamentally misconceived and fails to reflect the basic values underlying the Confrontation Clause. The confrontation right should apply only to a limited category of out-of-court statements, but as to those it should be deemed categorical, not subject to balancing or ringed with exceptions. The article examines three different categorical approaches. It concludes that the values and history underlying the Confrontation Clause are best reflected by a theory that focuses on whether the out-of-court statement, if admitted at trial, would amount to the functional equivalent of testimony. This approach, unlike the others, leads to the proper treatment of 911 calls.