Article Title

Confronting Crawford


In Shakespearean tragedy, horrific acts create a break in the great chain of being, a tear in the cosmic fabric that must be set right. Certain events are marred by such flagrant and gross injustice that they are seared into the collective memory. Our historical conscience impels us to prevent their recurrence. To the Framers of the Constitution, such an event was the case of Sir Walter Raleigh. Raleigh was tried at Winchester, in 1603, on charges of conspiring with a certain Lord Cobham to unseat King James I. While he languished in the Tower of London, Cobham signed a confession in which he implicated Sir Walter. Cobham promptly retracted, so the Crown dared not produce him at trial. Instead, their chief piece of evidence was the written confession. Raleigh bitterly protested the introduction of this dubious but damning confession absent opportunity to question its author. His plea was rebuffed. Raleigh was convicted and beheaded.

One hundred and eighty-six years later in the sweltering summer heat of New York City, the First Congress drafted the Sixth Amendment which requires that "[i]n all criminal prosecutions, the accused shall enjoy the right to ... be confronted with the witnesses against him." It was ratified in 1791. The exact requirements of this provision and its interplay with the common law hearsay exceptions have long been the subject of litigation. For years, the controlling Supreme Court precedent on the question was Ohio v. Roberts, under which courts could admit any hearsay they deemed reliable. But in the spring of 2004, the Court upset the equilibrium with its bold decree that regardless of reliability, testimonial hearsay is only admissible if the witness is unavailable and there was prior opportunity for cross-examination. Not surprisingly, the pronouncement raised more questions than it answered, and the Court left it to the lower courts to sort out ambiguities and fill the gaps. This Article examines the Crawford decision and its aftermath, looking at the problems Crawford raised and the solutions lower courts have found.

A central argument of this Article is that the logic of the Crawford decision flows directly into an analytical framework for resolving the difficult issues the decision raises. The Crawford doctrine protects less (i.e., only testimonial evidence), but is more rigorous as to that which is protected (i.e., it disapproves of Roberts's reliability exception). Following this approach, where proffered evidence is testimonial, doubts surrounding admissibility must be resolved in the defendant's favor. For example, the standard of evidence necessary to extinguish a confrontation claim on the grounds of forfeiture by wrongdoing should be clear and convincing rather than a preponderance. However, when the evidence is nontestimonial, doubts surrounding it should be resolved in favor of the government. Thus, nontestimonial hearsay should not trigger Confrontation Clause scrutiny at all, instead of a residual, Roberts-like reliability test courts continue to apply.

Following the introduction, Part II reviews the historical precedents leading up to the Crawford decision, the facts of the case itself, and the reasoning. Part III examines what constitutes testimonial hearsay. Part IV examines the definition of unavailability and the question of what rule controls nontestimonial hearsay. Part V examines unavailability and the limits of a confrontation right forfeiture by wrongdoing. Part VI canvasses the contours of adequate opportunity for cross-examination. Part VII concerns the extent to which the decision applies retroactively. Part VIII, like Rule 807 of the Federal Rules of Evidence, is a residual. It probes the confrontation right in civil cases.