'Testimonial' and the Formalistic Definition - The Case for an 'Accusatorial' Fix

Document Type



The most up-to-date version of this piece can be found in the Duke Law Scholarship


The definition that the Supreme Court ultimately gives to the concept of testimonial statements will obviously be of critical importance in determining whether the new Confrontation Clause analysis adopted by Crawford affects only a few core statements or applies to a broader group of accusatorial statements knowingly made to government officials and perhaps private individuals at arm's length from the speaker. I contend that the broader definition is more consistent with the anti-inquisitorial roots of the Confrontation Clause when that provision is applied in the modern world. If my sense of the proper scope of the clause is roughly correct, then the testimonial statement concept must be reoriented from its potentially formalistic definition to one that includes such accusatorial statements. Employing accusatorial statement language as part of the inquiry is one obvious and important step in this transformation.

I argue that a movement in the direction of accusatorial terminology and coverage needs to begin as soon as possible so that lower courts can demonstrate that convergence is feasible and to reduce the costs of general jail release. I contend that the accusatory concept is consistent with the core concerns of the Confrontation Clause and will help advocates and courts to reach sensible results that are consistent with history, the language of the clause, and its function in a modern and complicated world.

Date of Authorship for this Version

March 2008