Crawford/Davis 'Testimonial' Interpreted, Removing the Clutter; Application Summary

45 Pages Posted: 12 Jun 2008 Last revised: 18 Jun 2008

See all articles by Michael H. Graham

Michael H. Graham

University of Miami - School of Law


This article argues that as a result of Davis v. Washington, U.S., 126 S.Ct. 266 (2006), the references in Crawford v. Washington, 541 U.S. 36 (2004) to concepts of interrogation, formality, solemnity, structured, the summary term bear testimony, and finally, and very importantly, the mental state of the declarant, objectively or subjectively viewed, i.e., would the declarant reasonably expect or believe his statement to be used or available for use by the prosecution at a later trial, are now simply clutter, clutter totally irrelevant in practice and in theory in determining whether an out of court hearsay statement offered against the criminal defendant is testimonial under the confrontation clause thus barring admissibility absent an opportunity for cross-examination of the hearsay declarant.

The article further suggests that pursuant to Crawford/Davis an out-of-court hearsay statement should be found testimonial only when it is an accusation of criminal conduct by an identified or identifiable accused elicited or received by a government official under circumstances objectively indicating that at the same time elicited or received the primary purpose for which the statement will be used by the government is to establish or prove past events potentially relevant to a later criminal prosecution of the identified or identifiable perpetrator. Adoption of an accusatory requirement with respect to determining testimonial would result in reports of unavailable forensic laboratory technicians being declared nontestimonial. Obviously, forensic laboratory reports such as DNA test results and a finding whether a substance is cocaine, do not themselves accuse an identified or identifiable person of having committed a crime.

Keywords: evidence and confrontation

Suggested Citation

Graham, Michael H., Crawford/Davis 'Testimonial' Interpreted, Removing the Clutter; Application Summary. University of Miami Law Review, Vol. 62, No. 901, 2008, University of Miami Legal Studies Research Paper No. 2008-24, Available at SSRN:

Michael H. Graham (Contact Author)

University of Miami - School of Law ( email )

P.O. Box 248087
Coral Gables, FL 33146
United States

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