
The Exclusionary Rule and the Confrontation Clause
A Yale teaching assistant for Akhil Reed Amar's course America's Unwritten Constitution revisits Amar's critique of the Fourth Amendment exclusionary rule, arguing it mainly benefits the guilty, before turning to a second exclusionary mechanism under the Sixth Amendment's Confrontation Clause. The lecture walks through the hearsay rule, the Supreme Court's shift to a testimonial standard in Crawford v. Washington, and the primary purpose test used to sort testimonial from non-testimonial statements. It applies that test to Ohio v. Clark, where a three-year-old's statement to a preschool teacher about abuse raised the question of whether a teacher counts as an agent of the state for Confrontation Clause purposes. Chaptered and concise, the talk is built around working through a live doctrinal puzzle rather than just summarizing case law, ending with an open question about how the Court should rule.