Page:Samia v. United States.pdf/22

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, concurring in part and concurring in the judgment.

I agree that the admission of Stillwell’s modified confession, together with a limiting instruction, did not violate the Confrontation Clause. But in my view, the historical evidence described in, is beside the point.

First is a timing problem. The evidence is largely from the late 19th and early 20th centuries—far too late to inform the meaning of the Confrontation Clause “at the time of the founding.” Crawford v. Washington, 541 U. S. 36, 54 (2004). The Court seems to agree, because it does not suggest that the history is probative of original meaning. But nor does it explain why this seemingly random time period matters. For whatever reason (the parties only speculate), there appears to be little founding-era evidence illustrating how courts handled the admission of a codefendant’s confession. So why not simply say that the history is inconclusive? And if we are going to pick up the thread in 1878, why drop it in 1896? Are cases from 1896 that much more important than cases from, say, the 1940s? While the Court makes a claim about “longstanding practice” for “most of our Nation’s history,”, it describes only a snapshot.

That brings me to my second problem: the substance of the snapshot. The cited cases address the rules of evidence