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Crawford Interpreted: 2004-2005


In 2004, the Supreme Court redid once again its interpretation of the Confrontation Clause of the Sixth Amendment. The majority opinion by Justice Scalia created a dual track system for applying the right of confrontation to hearsay evidence. The first track subjected evidence the opinion called “testimonial” to a severe standard; the evidence was inadmissible unless the declarant was unavailable and the defendant had a prior opportunity to cross-examine the declarant. Non-”testimonial” evidence ran down the other track to an uncertain destination. The author has argued elsewhere [ see forthcoming article at ] that the Court might have found some support for a dual-track right of confrontation in the history of the Confrontation Clause where the Founders drew a distinction between “accusers” and “witnesses.”

The present essay documents the interpretation of Crawford by state and lower federal courts in the year after the Supreme Court’s decision. The author believes these cases suggest that when the Supreme Court revisits Crawford, it might limit that case to hearsay that amounts to an “accusation” in common parlance. Moreover, in dealing with accusations and non-accusatorial hearsay, the Court would do well to consider the Confrontation Clause, not as an isolated provision of the Sixth Amendment, but as a part of a “holistic” Bill of Rights that captures what the Founders called “trial by jury” when they objected to the use of inquisitorial criminal procedures.

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