Confronting Confrontation
Trial Magazine, Forthcoming
12 Pages Posted: 22 Jan 2009 Last revised: 1 Jul 2013
Date Written: January 21, 2009
Abstract
In Crawford v. Washington (2004) the Supreme Court established the testimonial/non-testimonial distinction for determining whether certain hearsay evidence offered by the government would be admissible at a criminal trial, or barred because of the defendant's right to confront witnesses against him. According to Crawford and a 2006 case, Davis v. Washington, evidence is "testimonial" (and therefore can't be used by the prosecution) if it was obtained by police interrogation after an emergency was over, but "nontestimonial" if obtained by police or a 911 operator while an emergency is ongoing. The Court further stated that evidence is "testimonial" if "produced with the involvement of government officers and with an 'eye toward trial.'" In Melendez-Diaz v. Massachusetts, the Court will consider whether the results of scientific tests count as "testimonial" (inadmissible) or "nontestimonial." While under Crawford/Davis they are clearly "testimonial," to so hold would unduly complicate criminal trials. Scientific testimony such as the drug tests in Melendez, are usually not presented by the person who prepared the report and that person has nothing to say beyond what is in the report. This article argues that the Crawford test was wrong in its inception, fails to adequately protect the defendant's right to confrontation, and should be abandoned in favor of an approach that recognizes that all evidence offered by the government at trial is "testimony." While the long accepted exception for business and official records should be recognized as an exception to the defendant's right in most cases, most other long-recognized hearsay exceptions, including "dying declaration" and "excited utterance" should be rejected.
Keywords: Constitutional Law, Criminal Procedure, Sixth Amendment, Confrontation Clause
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