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Jeffrey Fisher: Confronting The Confrontation Clause, One U.S. Supreme Court Case At A Time

Publication Date: 
December 10, 2009
Lawyers USA
Sylvia Hsieh

Associate Professor Jeffrey Fisher, who co-directs the Supreme Court Litigation Clinic, was featured in this report by Sylvia Hsieh at Lawyer's USA:

Jeffrey Fisher is confronting the Confrontation Clause, one U.S. Supreme Court case at a time.

Fisher is hooked on the Sixth Amendment - and for good reason.

He has won three groundbreaking Supreme Court cases on the subject that will be cited for generations.


This year, in Melendez-Diaz v. Massachusetts, Fisher convinced the Court that forensic reports are testimonial evidence requiring that the prosecution produce the lab technician at trial for cross-examination.


But for Fisher, the case was a natural extension of his earlier victory in Crawford.

"The reason I picked Melendez was that it was the most important unsettled issue under Crawford. It was literally coming up every day in courtrooms," he said.

If Fisher chose the case for practical reasons, he also prepared to defend the practicality of his position at oral arguments, interviewing attorneys in states that already present live testimony of lab analysts in order to address what he knew would be the central focus of the Court's questions - whether his standard would overly burden states.


Pragmatism aside, the sparse Confrontation Clause landscape has an intellectual appeal for Fisher, a law professor who teaches a Supreme Court litigation clinic at Stanford Law School.

"It's one of the very few building blocks of criminal trials. ... We are in the world much like in the 70s with Miranda [and] the very basic outlines of constitutional protections. ... It's invigorating to be able to argue on first principles, not through layers of precedent," he said.

Having already argued 11 Supreme Court cases (with a deceptively balanced 5-5-1 record), and with two more in the works, it's likely that Fisher, who is not yet 40, will be setting precedent for years to come.