Testimonial Is As Testimonial Does

13 Pages Posted: 14 May 2014

See all articles by Ben Trachtenberg

Ben Trachtenberg

University of Missouri School of Law

Date Written: May 7, 2014


In December 2012, the Florida Law Review published Ben Trachtenberg’s article “Confronting Coventurers: Coconspirator Hearsay, Sir Walter Raleigh, and the Sixth Amendment Confrontation Clause,” 64 Fla. L. Rev. 1669 (2012). Using the example of hearsay admitted in criminal prosecutions related to the Holy Land Foundation, the article argued that under Crawford v. Washington, courts had begun admitting unreliable hearsay against criminal defendants that previously would have been barred under Ohio v. Roberts, the Confrontation Clause case upended by Crawford.

Richard D. Friedman, the Alene and Allan F. Smith Professor of Law at the University of Michigan, responded in “The Mold that Shapes Hearsay Law,” 66 Fla. L. Rev. 433 (2014). Professor Friedman vigorously defended the concept of “testimonial” hearsay set forth in Crawford and argued further that for the most part there is no good reason to exclude nontestimonial hearsay if live testimony by the declarant to the same proposition would be admissible.

This essay, published along with that of Professor Friedman, continues the debate. After briefly revisiting the criticism of Crawford’s historical basis - and noting the questionable “originalist” support for the Confrontation Clause doctrine - this essay argues that the Court’s Sixth Amendment jurisprudence should be judged by its works. Because a majority of Justices has been unable to present a coherent definition of “testimonial,” evaluating the Crawford decision remains difficult a decade after its issuance. Nonetheless, it is becoming clear that a sensible Confrontation Clause doctrine will concern itself with the reliability of evidence admitted against criminal defendants. The success of subsequent efforts to define the right of a defendant “to be confronted with the witnesses against him” will depend, at least in part, on the answer to these questions: Does the doctrine admit reliable evidence? Does it exclude unreliable evidence?

Keywords: confronting, coventurers, coconspirator, hearsay, Crawford, Friedman, Sixth Amendment, confrontation, nontestimonial, testimonial

Suggested Citation

Trachtenberg, Ben, Testimonial Is As Testimonial Does (May 7, 2014). 66 Florida Law Review 467 (2014), University of Missouri School of Law Legal Studies Research Paper No. 2014-15, Available at SSRN: https://ssrn.com/abstract=2434266

Ben Trachtenberg (Contact Author)

University of Missouri School of Law ( email )

Missouri Avenue & Conley Avenue
Columbia, MO MO 65211
United States

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