The Revolution Revised: A Guided Tour of Davis v. Washington

[In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) the U.S. Supreme Court radically altered its approach to application of the Sixth Amendment right of confrontation to evidentiary use of hearsay statements. Lower courts then began to pick-and-choose among the three “formulations” of those “testimonial” statements the Court had offered and some interpreted Crawford to allow categori-cal exceptions to the right of confrontation. See Wright & Graham, Federal Practice and Procedure Evidence § 6371.2 (Supp.2006)[cited in this essay as “FPP” as it can be found on Westlaw by entering those letters and the section number desired.]In Davis v. Washington, 541 U.S. ___, 126 S.Ct. 2266 (2006) the Supreme Court reviewed decisions involving two of the categorical exceptions; 911 calls and “investiga-tory interrogations.” In a self-consciously narrow opinion by Justice Scalia, eight members of the Court rejected per se treatment of those categories and apparently overruled Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). But despite its narrow scope, the Davis opinion has implications for the Crawford “formulations” and two proposed alternatives, for the future of categorical analysis, and for the Court’s reading of the history and policy of the Confrontation Clause. This essay examines all of these.