The stars are aligned today for the overruling of Crawford v. Washington. (1) Although Justice Scalia's opinion in that Confrontation Clause case omitted analysis of most of the recognized factors justifying its sharp departure from stare decisis, (2) by now those factors have developed in a way that justifies departure from Crawford itself. (3) For example, even commentators who support the apparent goal of that decision, namely, broad exclusion of evidence on Confrontation Clause grounds, describe Crawford and its progeny as unstable. (4) The underpinnings of the decision are dubious and, in some instances, provably wrong.5 Crawford has led to a series of decisions by closely divided Courts (6) that have left important issues heavily discussed but unresolved. (7) To reach decisions that make sense after Crawford, the Justices have resorted to transparent judicial fudging. (8) In summary, the Crawford approach is neither faithful to the Constitution nor workable. And by now, remarkably, a majority of the Court is united in rejecting that approach (9) and preferring differing alternatives that easily could be reconciled and that would produce results more congruent with the purposes of the Confrontation Clause. (10)
The regime that preceded Crawford did not feature the kind of indeterminacy that has followed that decision. The principal earlier decision, Ohio v. Roberts, (11) was imperfect, to be sure, but contrary to statements in Crawford, its rationale was traceable to the history of the Confrontation Clause. (12) Decisions made under its approach did not require judicial legerdemain to come to reasonable conclusions. (13) Furthermore, Crawford ignores the justifications recognized by the Court for departure from stare decisis, in this instance by its jettisoning of Roberts, (14) and overruling Crawford would replace that decision with satisfactory doctrine even if the Court failed to update Roberts. (15)
Articles discussing Crawford are numerous, as might be expected. They are generally uncomplimentary, (16) featuring descriptions ranging from "unstable" (17) to "unspeakable." (18) Few of them, however, discuss whether Crawford should be overruled, (19) and none analyzes this question in light of the Court's doctrine that governs departures from stare decisis. That is the ultimate purpose of this Article. The reason for this void in the scholarship may be the recent rendition of Supreme Court decisions that most persuasively demonstrate the need for rejecting Crawford. (20) In other words, although Crawford itself has been around for some time and has been the subject of several analyses, it is only recently that this Article can be written in convincing terms, and its subject is new.
The Article begins with descriptions of Roberts and Crawford, the two opposing decisions considering the Confrontation Clause. It then analyzes the manner in which the Crawford Court overruled Roberts and compares the Court's reasoning to criteria it has developed for departures from stare decisis. Next, the Article considers defects in the Crawford decision, with particular attention to errors in its rationale, later decisions attempting to follow it, issues that have remained unresolved, and the practical effects that have resulted. The sixth section of the Article discusses Williams v. Illinois, in which a coalition formed to reject the Crawford rationale--and in which the Court arguably has overruled that decision by implication. A final section sets out the author's conclusions, which include the propositions that the overruling of Roberts was not justified by the reasoning in Crawford, but that the overruling of Crawford is amply justified by criteria expressed in the Court's stare decisis decisions.
I. THE CONFRONTATION CLAUSE, OHIO V. ROBERTS, AND CRAWFORD V. WASHINGTON
The Sixth Amendment to the Constitution provides that in criminal prosecutions, the accused shall enjoy the right "to be confronted with the witnesses against him. …