Refining Crawford: The Confrontation Claus After Davis v. Washington and Hammon v. Indiana

Clarification of the Supreme Court’s newly minted interpretation of the Confrontation Clause was desperately needed, and Davis v. Washington and Hammon v. Indiana promised to provide it. Two terms earlier, in Crawford v. Washington, the Supreme Court had worked a revolutionary transformation of Confrontation Clause analysis by overruling Ohio v. Roberts and severing the link between hearsay jurisprudence and the Clause. Crawford was hailed by the criminal defense bar, since it seemed to presage a sharp reduction in the frequency of so-called “victimless” trials by holding that “testimonial” hearsay, no matter how reliable, was constitutionally inadmissible in the absence of an opportunity to cross-examine, and further ruling that statements elicited through police “interrogation” were testimonial. But the Court refused to define the terms “testimonial” and “interrogation,” leaving lower courts with little guidance when evaluating the circumstances in which unconfronted early accusations of crime could provide the basis for prosecution. And it listed, as a potential definition of “testimonial,” the narrow formulation urged by Justice Thomas in his concurring opinion in White v. Illinois that would only cover statements contained in “formalized” materials, which if accepted would exclude very few early accusations