Title

Crawford v. Washington, Encouraging and Ensuring the Confrontation of Witnesses

Document Type

Article

Comments

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

Abstract

In Crawford v. Washington (2004), the United States Supreme Court radically altered Confrontation Clause analysis for the admission of hearsay statements. It created a very firm rule of actual confrontation for a narrowed class of covered hearsay, termed "testimonial statements," and created only a limited number of exceptions. This new regime differed dramatically from the trustworthiness/reliability mode of analysis of Ohio v. Roberts (1980), which provided very wide but incredibly shallow protection against the admission of hearsay offered by the prosecution against the defendant. This article analyzes the basic teachings and uncertainties left in the wake of Crawford, sifting through scores of early lower court opinions analyzing its meaning and impact. The article documents what we know, what we might prediction, and what we must only speculate about when it comes to the meaning of Crawford. It also argues that in developing the doctrine, the focus should be upon constructions that both encourage and ensuring confrontation rather than being preoccupied with either excluding evidence because of the denial of confrontation or ways to avoid confrontation, such as through an expansive interpretation of the forfeiture doctrine.

Date of Authorship for this Version

June 2008



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