Confronting Crawford v. Washington in the Lower Courts
Dylan O. Keenan
Yale University - Law School
February 1, 2012
Yale Law Journal, Vol. 122, 2012
Crawford v. Washington is arguably the most significant criminal procedure decision of the last decade. Critics have argued that the Crawford line is a doctrinal muddle that has led to arbitrary and unpredictable results in the lower courts. I respond to this critique with empirical evidence by presenting results from the first statistical analysis of post-Crawford Confrontation Clause cases. The results show that lower courts have emphasized two factors — the presence of a state actor and the presence of an injured party — to evaluate whether a statement is testimonial under Crawford. I then argue that these results are not ambiguous or contradictory but consistent with Crawford’s reasoning and the underlying purposes of the Confrontation Clause.
Number of Pages in PDF File: 55
Keywords: confrontation clause, Crawford v. Washington, empirical, content analysis, criminal procedure, constituitonal law, criminal law, sixth amendment, regression analysis
JEL Classification: K14, K19, K42Accepted Paper Series
Date posted: October 18, 2012 ; Last revised: December 23, 2012
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