'Witnesses' in the Confrontation Clause: Crawford V. Washington, Noah Webster, and Compulsory Process

88 Pages Posted: 3 Aug 2005

Date Written: August 2005


Crawford v. Washington changed how the Confrontation Clause is interpreted. Crawford has drawn commentary primarily about the meaning of "testimonial statements," its key, but undefined, concept and its historical analysis, which formed a foundation for the decision. This article, however, focuses on another part of Crawford's analysis and on analyses Crawford did not do but should have.

Justice Scalia's opinion for the Court undertook a textual analysis and, relying on Webster's early dictionary, concluded that "witnesses" in the Clause meant those who bear testimony. From this the Court concluded that the Confrontation Clause applies to those who make "testimonial statements." While the Court did not define "testimonial statements," the opinion indicates that the term refers to declarations that are akin to ex parte affidavits and depositions of the eighteenth century. This textual analysis was incomplete and misleading. The article shows that Webster's also supports much broader definitions of "witnesses" that would include all those who have personally perceived a relevant event or who give evidence or proof. These broader meanings supported by the text would include all hearsay declarants.

The Court did not examine how its selected meaning comported with other uses of "witness" in the Constitution, which are in the Treason, Self-Incrimination, and Compulsory Process Clauses. The article discusses how all those other uses employ the broader meanings of "witness."

The Court interpreted confrontation without mention of its Sixth Amendment context and, most notably, without mention of confrontation's companion provision, the Compulsory Process Clause. The article explains how Crawford's method of confrontation interpretation is fundamentally at odds with Sixth Amendment history and interpretation. If Crawford's method is correct, much Sixth Amendment doctrine is at stake, and if that Sixth Amendment doctrine is right, then Crawford's approach to confrontation is wrong.

Keywords: Crawford v. Washington, confrontation, compulsory process, treason, self-incrimination, witness, testimony, testimonial statements, hearsay, Sixth Amendment, dictionary, text

Suggested Citation

Jonakait, Randolph N., 'Witnesses' in the Confrontation Clause: Crawford V. Washington, Noah Webster, and Compulsory Process (August 2005). NYLS Legal Studies Research Paper No. 05/06-2. Available at SSRN: https://ssrn.com/abstract=775684 or http://dx.doi.org/10.2139/ssrn.775684

Randolph N. Jonakait (Contact Author)

New York Law School ( email )

57 Worth Street
New York, NY 10011-2960
United States

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