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The Short (?), Happy (?) Life of Crawford v. Washington

  • Author(s): Graham, Kenneth
  • et al.

In 2004 in Crawford v. Washington, 511 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177, the U.S. Supreme Court sought to undo the fusion between the Sixth Amendment right of confrontation and evidentiary rule of hearsay epitomized by its 1980 decision in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597. Crawford reduced the scope of the right of confrontation but made it far more rigorous than it had been under Roberts.

However, the majority opinion in Crawford tried to downplay the decision’s revolutionary potential and to emphasize its continuity with the Supreme Court’s prior cases. This left the state and lower federal courts understandably puzzled about just what to make of Crawford. See Crawford Interpreted: 2004-2005, available at:

So two years later in Davis v. Washington, 2006, 547 U.S. ___, 126 S.Ct. 2266, the Court returned to Crawford by reviewing a pair of domestic violence cases from Washington and Indiana that typified the way in which state courts tried to narrow the impact of Crawford. Unlike Crawford, Davis was a quite modest opinion that rejected two categorical exceptions to Crawford for 911 calls and so-called “investigatory interrogations---and explicitly overruled Roberts. See The Revolution Revised: A Guided Tour of Davis v. Washington, available at

However, the modest scope of Davis is difficult to appreciate without some sense of the range of problems with which the state and lower federal courts grappled in the first two years under Crawford. Accordingly, this essay comprehensively collects and attempts to synthesize the hundreds of cases decided down to the eve of Davis. Since “unpublished opinion” has become a nearly complete oxymoron, “unpublished”, “depublished”, and otherwise non-precedential opinions are included on the theory that users may find them helpful even if they cannot cite them.

Note on citation form. Since this essay will eventually appear in the 2007 pocket parts as § 6371.2 of 30A Wright & Graham, Federal Practice and Procedure: Evidence, it adheres to the idiosyncratic citation form of that treatise. For example, citations to that treatise appear as simply “FPP § 6370, text at notecall 120.” Readers who want to find what is said at that point may go on Westlaw, enter “FPP § 6370” in the “Find” box, and hit “go.”

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