Unwrapping the Box the Supreme Court Justices Have Gotten Themselves Into: Internal Confrontations over Confronting the Confrontation Clause

Williams v. Illinois, handed down in 2012, is the latest in a new and revolutionary line of U.S. Supreme Court cases beginning with the 2004 decision of Crawford v. Washington which radically altered the Court\u27s former approach to the Constitutional Confrontation Clause. That clause generally requires persons who make written or oral statements outside the trial, that may constitute evidence against a criminal defendant, to take the witness stand for cross-examination rather than those statements being presented at the trial only by the writing or by another person who heard the statement. Previous to Crawford, under Ohio v. Roberts, decided in 1980, the Court did not apply the requirement to statements made outside the trial if they were considered reliable. They were considered reliable only if they fit a traditional “firmly rooted” hearsay exception or were otherwise deemed reliable on the facts. But Crawford overruled Roberts. Crawford held that reliability is too subjective and flexible a concept, and that the Confrontation Clause by its terms does not command merely that evidence be reliable, but that reliability be determined in a particular way--by live cross examination. Thus Crawford decreed that henceforth, oral or written statements made outside of the trial that are “testimonial” cannot be admitted into evidence against the criminal defendant unless defendant has an opportunity to cross examine the maker at the trial or (if the maker is unavailable then) there was a sufficient earlier opportunity for cross examination. “Testimonial” generally speaking seemed to mean statements intended or understood to potentially supply evidence (perhaps only if the statement is acquired by agents of the state in a somewhat formal or solemn setting)