Crawford's Aftershock: Aligning the Regulation of Nontestimonial Hearsay with the History and Purposes of the Confrontation Clause

Article excerpt

 INTRODUCTION
   I. THE CASE FOR LIMITING THE CONFRONTATION CLAUSE TO TESTIMONIAL
      STATEMENTS, AND WHY IT IS WRONG
      A. Taking a Historical and Purposive Look at the Confrontation
         Clause
      B. The Tale of the Inconclusive Text
      C. Fulfilling the Primary and Secondary Goals of the
         Confrontation Clause
  II. NONTESTIMONIAL STATEMENTS: HOW MUCH "CONFRONTATION" IS
      ENOUGH?
      A. The Unreliability of the Roberts Reliability Test
         1. Corroborating evidence
         2. Child hearsay in abuse cases
      B. And Besides, Roberts Misses Much of the Point of Confrontation
         1. Confrontation: what's the point?
         2. Roberts's incomplete focus--treating sincerity as
            sufficient
 III. THE CLAUSE'S PERIMETER: LOOKING FORWARD
      A. Proposals One and Two: Immediate Admission of Impeachment
         Materials
      B. Proposal Three: Bringing Out the Best of Roberts
      C. Confrontation as Argument
 CONCLUDING THOUGHTS

INTRODUCTION

Courts have called the decision a "bombshell," a "renaissance," and the dawning of a "new day" in the Sixth Amendment's Confrontation Clause jurisprudence. (1) News reports have called the decision "an earthquake rocking America's criminal justice foundations." (2) Four years ago, in Crawford v. Washington, (3) the United States Supreme Court revisited the scope and purposes of the constitutional guarantee that a criminal defendant shall "be confronted with the witnesses against him." (4) The case and its progeny (5) redefined this clause's implications for hearsay statements. (6)

Before Crawford, under Ohio v. Roberts, (7) the Confrontation Clause barred prosecutors from introducing hearsay statements against a criminal defendant unless the statements met one of two prerequisites. The statement had to either fall into a "firmly rooted hearsay exception" or bear "particularized guarantees of trustworthiness." (8) Yet, in Crawford, the Court found the Roberts test problematic, at least in the context of what it called "testimonial statements." (9) Without providing a precise definition of this term, the Court concluded that "testimonial" hearsay statements are admissible only if the witness is "unavailable to testify, and the defendant [has] had a prior opportunity for cross-examination." (10)

Commentary on the Confrontation Clause exploded after the Crawford decision--mostly exploring the precise definition of "testimonial." (11) This narrow question has also been the focus of Confrontation Clause cases that the Supreme Court has decided post-Crawford. (12) Still, while the definition of "testimonial" is a rich issue, surprisingly little was written in the immediate aftermath of Crawford about a related question: should the Confrontation Clause now leave nontestimonial statements unregulated altogether? (13)

For roughly a two-year period, courts continued to apply the old Roberts test to nontestimonial statements consistently, (14) though not unflinchingly. Some noted that many of the problems that plagued the reliability test in the context of testimonial statements continued to haunt with equal force when courts assessed whether nontestimonial statements ought to be admitted into evidenee. (15) And in some eases, courts' intuitions that the Roberts test would ultimately be revisited in the context of nontestimonial statements were palpable. (16)

These lower courts' intuitions proved correct. While the Supreme Court stated in Crawford that "even if the Sixth Amendment is not solely concerned with testimonial hearsay, that is its primary object," (17) the Court went further two years later in Davis v. Washington. There, the Court concluded that "testimonial" statements not only mark the Confrontation Clause's '"core,' but its perimeter." (18) A few courts, even after Davis, continued to apply Roberts to nontestimonial hearsay statements. (19) But in 2007, the Supreme Court issued an even more direct and unambiguous declaration on the subject in Whorton v. …