Crawford V. Washington, the Confrontation Clause, and Hearsay: A New Paradigm for Illinois Evidence Law

Abstract

For nearly a quarter century, Ohio v. Roberts had provided the constitutional standards for the admissibility of evidence that had met the several states' tests for the admissibility of evidence over hearsay objections. Clearly, any Illinois statute or common law hearsay rule that conditions the admissibility of a testimonial statement in a criminal trial under a hearsay exception on a finding by the trial judge that the out-of-court statement is trustworthy is constitutionally flawed. Equally at risk is the admissibility of a testimonial statement conditioned on a finding that it falls within a firmly rooted hearsay exception. Consequently, the continued validity of certain applications of this section will ultimately depend on which formulation of testimonial statement Illinois courts choose to apply. Chapter 725, section 5/115-10.2a, provides Illinois' hearsay exception for the admissibility of out-of-court statements in domestic violence prosecutions when the declarant is unavailable to testify. Crawford's effect on this exception will depend upon which formulation of testimonial statement the Illinois courts employ. For example, does a witness to a hit-and-run accident who takes down the offender's license plate number make a testimonial statement? Under one formulation, the declarant is writing this down with a reasonable expectation that it could and would be used for prosecutorial purposes.

JEL Classification: K00