Confrontation and Hearsay: A Critique of Crawford

Abstract

In the recent case of Crawford v Washington, the United States Supreme Court took a new interpretation of the right of confrontation, as it is expressed in the Confrontation Clause of the Sixth Amendment to the United States' Constitution, and of the relation of that right to the hearsay doctrine. According to the majority, no ‘testimonial’ statement is admissible as evidence of the fact stated unless the maker of the statement is unavailable to testify at the trial and there was a prior opportunity to cross-examine him. This article examines the reasoning in Crawford, the concept of a ‘testimonial’ statement, and the application of the decision in subsequent cases. While the ruling in Crawford purports to be true to the letter and spirit of the Confrontation Clause, there are grounds to be critical of the reasoning of the majority and of the merits of the new approach.