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Litigating Crawford v. Washington: 'Testimonial' Hearsay, and the Right to Confrontation and Cross Examination

12 Pages Posted: 13 Jun 2013  

F. Thomas Schornhorst

Indiana University Maurer School of Law

Date Written: September 2008


Four years ago Supreme Court Justice Antonin Scalia's “original intention of the framers” approach to constitutional interpretation gained a major foothold with an emerging majority of the U.S. Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004). This, of course, is the case that altered the methodology for judicial interpretation of the relationship of the Confrontation Clause of the Sixth Amendment and a variety of rules of evidence that permit the receipt of hearsay in criminal cases.

For almost a quarter century preceding Crawford, federal and state courts had struggled to apply the doctrine of Ohio v. Roberts, 448 U.S. 56 (1980). While recognizing the core value protected by the Confrontation Clause to be a criminal defendant’s right to in court cross-examination of adverse witnesses, the Roberts Court concluded that it was nevertheless consistent with the receipt of certain kinds of hearsay evidence from “unavailable” witnesses, so long as there were adequate “indicia of reliability.” Moreover, “Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception.” But this did not define the limits of constitutionally acceptable hearsay, so long as the proponent could show “particularized guarantees of trustworthiness.” Id. at 64-66. [This reminds me of a cartoon I once saw in the New Yorker depicting a lawyer standing up in court and saying to the judge, “Your honor, I know it’s hearsay – but it’s damn good hearsay!”]

Finding the Roberts approach inherently unpredictable and at odds with the “original intent” of the framers of the Confrontation Clause, Justice Scalia’s opinion for the Court recast the inquiry. Instead of looking at the reliability (truth) of a hearsay statement, the focus should be on the manner or procedure by which the statement was obtained for use as evidence. Viewed from this perspective, only those hearsay exceptions that permit the receipt of uncross-examinable “testimonial” statements run afoul of the Confrontation guarantee.

Like all ground breaking decisions, Crawford raises more questions than it answers, and that will be the focus of our discussion. Keep in mind, however, that Crawford and its burgeoning progeny address a narrow range of issues that arise in applying the hearsay rules. For the most part, hearsay legal doctrine is left undisturbed.

Keywords: hearsay, Crawford, Confrontation Clause

Suggested Citation

Schornhorst, F. Thomas, Litigating Crawford v. Washington: 'Testimonial' Hearsay, and the Right to Confrontation and Cross Examination (September 2008). Indiana Legal Studies Research Paper No. 244. Available at SSRN: or

F. Thomas Schornhorst (Contact Author)

Indiana University Maurer School of Law ( email )

211 S. Indiana Avenue
Bloomington, IN 47405
United States

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