Crawford and Its Progeny

The Prosecutors' Resource (Oct. 2012)

Posted: 15 Mar 2013

See all articles by Michal Gilad

Michal Gilad

University of Pennsylvania Law School

Date Written: October 1, 2012


There are many barriers to victims’ participation in the prosecution of their abusers. The perennial challenge of prosecuting domestic violence cases without a testifying victim has been greatly impacted by the Sixth Amendment's Confrontation Clause, as interpreted in the landmark case of Crawford v. Washington and its progeny, where the admissibility of out-of-court statements is addressed.

When prosecuting a domestic violence case with a non-participating victim (one who either is not in court, or who is in court but is “unavailable” by reason of refusal to testify, exercise of a privilege, illness, or incompetency) the prosecutor must anticipate a challenge under Crawford v. Washington to the introduction of the victim’s out-of-court statements. In the course of preparing and trying such cases, prosecutors must constantly consider what evidence will be admissible at trial, in view of Crawford's limitations on hearsay evidence. Analysis of all of the relevant factors in making these determinations can be complex.

This Resource will first place Crawford in its historical context, and explain how the rules governing application of the Confrontation Clause have changed as a result. Next, it will present a framework for analyzing admissibility of out-of-court statements under the Crawford rules, using a flowchart and detailed outline. Prosecutors will be guided through the analysis of the relevant factors, as set forth in various cases decided in the wake of Crawford. The Resource will also suggest strategies for maximizing admissible evidence at trial, including motions to admit hearsay evidence under the doctrine of forfeiture by wrongdoing, and provide sample questions for direct examination of 911 operators, police officers, and nurse examiners. Finally, it will provide a list of resources, sample questions, and strategy suggestions to assist in satisfying the confrontation requirements under the Sixth Amendment.

Keywords: Crawford, Roberts, Davis, Whorton, Giles, prosecution, witness, victim, gender violence, women, violence against women, evidence, statement, testimony, testimonian statement, nontestimonial statement, criminal law, criminal procesure, sixth amendment, constitutional law, confrontation claus

Suggested Citation

Gilad, Michal, Crawford and Its Progeny (October 1, 2012). The Prosecutors' Resource (Oct. 2012), Available at SSRN:

Michal Gilad (Contact Author)

University of Pennsylvania Law School ( email )

Philadelphia, PA
United States

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