Confronting Crawford V. Washington in the Lower Courts

By Keenan, Dylan O. | The Yale Law Journal, December 2012 | Go to article overview
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Confronting Crawford V. Washington in the Lower Courts

Keenan, Dylan O., The Yale Law Journal


     A. The Sixth Amendment Right of Confrontation Before Crawford
     B. Crawford's Reformulation of Confrontation Clause Doctrine
     C. Davis's Refinement of Crawford
     D. Further Refinements: Melendez-Diaz, Bryant, and Williams

     A. The Data Set
     B. Descriptive Statistics
     C. Stepwise Logistic Regression Analysis
     D. Limitations of the Data

     A. The Confrontation Clause, Consistently
     B. Lower-Court Decisions and the Meaning of Confrontation





The Supreme Court's decisions in Crawford v. Washington (1) and its progeny reshaped Confrontation Clause doctrine. (2) Repudiating the Court's earlier focus on the reliability of out-of-court hearsay, Crawford held that the Confrontation Clause (3) provides defendants with a right to cross-examine only those declarants who made "testimonial" out-of-court statements. (4) The Court did not, however, comprehensively define testimonial statements in either Crawford or any of its subsequent Confrontation Clause opinions. (5) Most academics and lower courts consider Crawford's reformulation of Confrontation Clause doctrine to be a radical one. (6) A minority argues that Crawford did not depart quite so substantially from the pre-Crawford doctrine. (7) The descriptive debate about the consequences of Crawford is supplemented by a lively debate about the normative desirability and legal reasoning of the decision. (8) Despite those disagreements, scholars generally agree that Crawford's stated doctrine is vague and that lower courts have struggled to apply it.

In this Note, I focus on that final problem: the ambiguity of Crawford-line decisions. Crawford announced a new rule for evaluating Confrontation Clause challenges, but it offered three different tests for applying the rule. (9) Subsequent decisions added a fourth test but failed to eliminate any of the original ambiguity. (10) Not surprisingly, scholarly "[c]riticism of Crawford's ambiguity abounds." (11) The Crawford line has been described as "vague[]," (12) "uncertain," (13) "unpredictable," (14) a "mess," (15) "almost arbitrary," (16) "incoherent," (17) and "an exercise in fiction." (18) These descriptions appear reasonable. To apply Crawford, lower courts must decide whether a statement is testimonial. Yet the Court has repeatedly refused to define testimonial statements, and has instead gestured towards certain "clues" that might indicate whether a statement is testimonial. (19) Lower-court splits lend credence to these critiques. In the immediate wake of Crawford, states and circuits split on how to apply Crawford in common circumstances: 911 phone calls, (20) statements by children, (21) and forensic analyses. (22) This criticism only intensified in the wake of Michigan v. Bryant (23) and Williams v. Illinois, (24) two of the Court's most recent Confrontation Clause cases.

This Note challenges the conventional wisdom about Crawford's vagueness through a rare large-scale empirical analysis of post-Crawford decisions. (25) Although the Supreme Court's doctrine is quite muddled, (26) this Note presents empirical evidence that lower courts have reached predictable and consistent results in Confrontation Clause cases. (27) This evidence shows that lower courts effectively employ a two-step process. (28) First, lower courts almost never apply the Confrontation Clause to statements not made to a state actor, finding that such statements are nontestimonial under Crawford. Second, lower courts are much less likely to find even statements to state actors to be testimonial when those statements are made in the context of a medical emergency.

After presenting the results of my empirical analysis, I argue that this two-step approach to Confrontation Clause cases is not only consistent but also defensible.

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