Crawford's Aftershock: Aligning the Regulation of Non-Testimonial Hearsay with the History and Purposes of the Confrontation Clause

Abstract

Through Crawford v. Washington and its progeny, the United States Supreme Court has limited the reach of the Confrontation Clause to testimonial hearsay. Testimonial hearsay, the court reasoned, was the primary object of the clause.

Other commentators have highlighted the history that persuasively shows that banning testimonial hearsay was the chief motivation behind the Confrontation Clause. But what do the purposes and history of the clause have to say about the admission of non-testimonial hearsay statements?

Part I examines common law near the Founding, and argues that non-testimonial hearsay was one of the ills that the Confrontation Clause was designed to protect against. Part I additionally proposes a two-tiered approach to interpreting the clause, in which testimonial statements receive the most vigorous form of constitutional scrutiny, but non-testimonial statements receive meaningful scrutiny as well.

Part II of the paper then explores what confrontation should mean, both historically and practically, in the context of non-testimonial hearsay. After marshaling relevant caselaw, historical texts, jury instructions and practitioners' guides, Part II additionally concludes that simply re-implementing the old pre-Crawford regime would not adequately or faithfully result in the type of meaningful confrontation demanded by the clause. Part III then proposes four interpretive reforms that would bring American courts closer to harmonizing the Confrontation Clause's regulation with the provision's full range of historical and practical values.

Keywords: Confrontation Clause, Sixth Amendment, hearsay, testimonial, non-testimonial, nontestimonial, originalism, textualism, cross-examination, Crawford v. Washington, Roberts, confront, accuser, Rule 806, immediacy, impeachment