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Confronting Crawford v. Washington in the Lower Courts

55 Pages Posted: 18 Oct 2012 Last revised: 23 Dec 2012

Dylan Keenan

Yale University - Law School

Date Written: February 1, 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.

Keywords: confrontation clause, Crawford v. Washington, empirical, content analysis, criminal procedure, constituitonal law, criminal law, sixth amendment, regression analysis

JEL Classification: K14, K19, K42

Suggested Citation

Keenan, Dylan, Confronting Crawford v. Washington in the Lower Courts (February 1, 2012). Yale Law Journal, Vol. 122, 2012. Available at SSRN:

Dylan Keenan (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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