After Crawford Double-Speak: 'Testimony' Does Not Mean Testimony and 'Witness' does Not Mean Witness

59 Pages Posted: 5 Nov 2010

See all articles by Josephine Ross

Josephine Ross

Howard University School of Law

Date Written: September 1, 2006


A controversy has raged since the U.S. Supreme Court altered the Confrontation Clause landscape in Crawford v. Washington. There, the Court coined the term “testimonial” as a means of determining whether a person who makes an out-of-court statement is a witness against the defendant and must therefore testify in person. This Article advocates a new definition that would be more in keeping with the meaning of the word “testimony” and with the functions served by the Confrontation Clause. Currently the Court determines whether a hearsay declarant is a witness based upon what occurred at the time the person made his out-of-court statement. Instead, this Article proposes that the Court should decide if out-of-court statements constitute testimony based on whether the declarants functioned as witnesses against the defendant at trial. With the recent case of Davis v. Washington, the Supreme Court had a chance to refine the concept of “testimonial.” This Article critiques Davis and illustrates how the application of the definition proposed here would have avoided Davis' confused and contradictory reasoning. Shifting the time-frame from the production of evidence to the use of the evidence in the courtroom will create a jurisprudence more in line with Crawford's promise to revive an important trial right for those accused of crimes.

Keywords: Confrontation Clause, Testimonial, Crawford v. Washington, Evidence, Criminal Procedure

Suggested Citation

Ross, Josephine, After Crawford Double-Speak: 'Testimony' Does Not Mean Testimony and 'Witness' does Not Mean Witness (September 1, 2006). Journal of Criminal Law and Criminology, Vol. 97, No. 147, 2006, Available at SSRN:

Josephine Ross (Contact Author)

Howard University School of Law ( email )

2900 Van Ness St., N.W.
Washington, DC 20008
United States

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