“Testimonial” and the Formalistic Definition: The Case for an “Accusatorial” Fix

The definition that the Supreme Court ultimately gives to the concept of testimonial statements will obviously be of critical importance in determining whether the new Confrontation Clause analysis adopted by Crawford affects only a few core statements or applies to a broader group of accusatorial statements knowingly made to government officials and perhaps private individuals at arm\u27s length from the speaker. I contend that the broader definition is more consistent with the anti-inquisitorial roots of the Confrontation Clause when that provision is applied in the modern world. If my sense of the proper scope of the clause is roughly correct, then the testimonial statement concept must be reoriented from its potentially formalistic definition to one that includes such accusatorial statements. Employing accusatorial statement language as part of the inquiry is one obvious and important step in this transformation. I argue that a movement in the direction of accusatorial terminology and coverage needs to begin as soon as possible so that lower courts can demonstrate that convergence is feasible and to reduce the costs of general jail release. I contend that the accusatory concept is consistent with the core concerns of the Confrontation Clause and will help advocates and courts to reach sensible results that are consistent with history, the language of the clause, and its function in a modern and complicated world

Testing the Testimonial Concept and Exceptions to Confrontation: “A Little Child Shall Lead Them”

In Crawford v. Washington (2004), the Supreme Court radically transformed the analysis of the Confrontation Clause for hearsay, but left many specific questions unanswered. Two years later in Davis v. Washington (2006), it revisited the subject and answered a few of the unresolved issues, but again left much in doubt, apparently reorienting the focus of the testimonial definition from that of the party making the statement to that of the person receiving it. One of the areas where the new doctrine has greatest potential importance is in cases involving children, particularly cases involving physical and sexual abuse. The importance derives from the fact that hearsay statements to family members, doctors and nurses, forensic investigators, and family members is often critical evidence in the prosecution. Despite the radical change in doctrine, the pattern in the caselaw involving statements by children in the wake of both Crawford and Davis is one largely of continuity in results from those under the discredited analysis of Ohio v. Roberts, which was generally to receive such statements. The one exception is for statements from children to police officers and those closely analogous—where exclusion under Crawford and Davis is now relatively uniform. The most significant development in analysis in recent cases is the focus on the purpose of the questioner, which in many situations simply provides a clearer explanation for an unchanged result. Statements for medical purposes are universally received. This result is buttressed by Davis’s questioner-purpose analysis. However, the nontestimonial treatment, while generally appropriate even for statements of identity during the initial medical assessment, should not, despite a medical label, continue for subsequent examinations where the prosecutorial purpose likely predominates

Crawford’s Impact on Hearsay Statements in Domestic Violence and Child Sexual Abuse Cases

This Essay examines the important ancillary doctrines that need to be developed in the wake of Crawford v. Washington (2004) and the testimonial statement approach to Confrontation Clause analysis to ensure that when confrontation is provided it in fact satisfies the requirements of the Clause. More than just some opportunity to cross-examine is required. The witness must be asked to make a public accusation in his or her direct testimony rather than simply being made available for questioning by defense counsel. A public accusation in not simply an after-thought of the right; rather, both it and cross-examination are central components. Whether confrontation occurs in the present proceeding or a prior one, a public accusation is required at one point in the case. When the witness is unavailable at trial and confrontation is satisfied by what occurred in the prior proceeding, the government must likewise present the accuser for the opportunity for cross-examination at that proceeding to be sufficient. In addition, the government must put something at risk, and the hearing must have consequences. To claim the defendant has been confronted by providing an opportunity for cross-examination which will likely only harm the defendant by allowing otherwise inadmissible incriminating evidence to be admitted at trial is inadequate to satisfy the Confrontation Clause

Crawford’s Impact on Hearsay Statements in Domestic Violence and Child Sexual Abuse Cases

This Essay examines the important ancillary doctrines that need to be developed in the wake of Crawford v. Washington (2004) and the testimonial statement approach to Confrontation Clause analysis to ensure that when confrontation is provided it in fact satisfies the requirements of the Clause. More than just some opportunity to cross-examine is required. The witness must be asked to make a public accusation in his or her direct testimony rather than simply being made available for questioning by defense counsel. A public accusation in not simply an after-thought of the right; rather, both it and cross-examination are central components. Whether confrontation occurs in the present proceeding or a prior one, a public accusation is required at one point in the case. When the witness is unavailable at trial and confrontation is satisfied by what occurred in the prior proceeding, the government must likewise present the accuser for the opportunity for cross-examination at that proceeding to be sufficient. In addition, the government must put something at risk, and the hearing must have consequences. To claim the defendant has been confronted by providing an opportunity for cross-examination which will likely only harm the defendant by allowing otherwise inadmissible incriminating evidence to be admitted at trial is inadequate to satisfy the Confrontation Clause

Softening the Formality and Formalism of the “Testimonial” Statement Concept

In Crawford v. Washington (2004), the United States Supreme Court ruled that “testimonial” statements are the core, perhaps exclusive, concern of the Confrontation Clause. The Court began a process of defining the testimonial-statement concept but did not develop a comprehensive definition. In Crawford, the Court concluded that a statement was testimonial, which was tape recorded and obtained from a criminal suspect who was in police custody, had been given warnings under Miranda v. Arizona (1966), and was being interrogated by known governmental agents using what the Court termed “structured” questioning. One of the definitions the Court explicitly presented as a possible model was highly formal and formalistic, and the fact pattern in Crawford, as briefly described above, would have fit within such a restrictive and wooden formulation of the concept. I use the terms formal and formalistic. By formal, I mean a requirement about the physical form of the statement (written, recorded, etc.), which is at the heart of the definition proposed by Justice Thomas in White v. Illinois (1992), and/or the formality of the proceedings where that statement was secured. By formalistic, I mean a relatively wooden adherence to a set formula rather than a functional approach based on the protective purposes of the Confrontation Clause. These two concepts are related but distinct: in my view, neither excessive formality nor formalism are demanded by Crawford nor are they consistent with its basic intuition about the role of the Clause. In Davis v. Washington (2006), the Court applied the Crawford testimonial-statement approach to two additional types of statements, one of which it found to be within the definition and the other outside it. The Court again declined to provide a comprehensive definition of the concept, and it left a large number of questions unanswered about its dimensions. However, it did reject some of the most formal and formalistic elements of what was possible after Crawford. Davis gave us a somewhat softened definition for the testimonial statement concept. Specifically, its holding and the additional explanatory language of Justice Scalia’s opinion for the eight-justice majority, often in direct or implicit response to Justice Thomas’ dissent advocating adherence to formality, has softened the formality of the definition. Davis’ expanded coverage and the modest flexibility it allows in applying the professed definition has also had the effect of softening its formalism. Both developments are quite positive, but unfortunately the opinions leave it entirely unclear whether the Court will continue in this direction. These changes in the formality and formalism of the testimonial statement concept and their implications are the subject of this essay. My analysis also leads to some further general observations. I question whether the term “testimonial” accurately describes the definition the Court is developing and whether that definition is as faithful to textual and originalist sources as Justice Scalia insists