Confrontation after Crawford

The following edit excerpt, drawn from The Confrontation Clause Re-Rooted and Transformed, 2003-04 Cato Supreme Court Review 439 (2004), by Law School Professor Richard D. Friedman, discusses the impact, effects, and questions generated by the U.S. Supreme Court\u27s ruling in Crawford v. Washington last year that a defendant is entitled to confront and cross-examine any testimonial statement presented against him. In Crawford, the defendant, charged with attacking another man with a knife, contested the trial court\u27s admission of a tape-recorded statement his wife made to police without giving him the opportunity to cross-examine. The tiral court admitted the statement, and the appeals court upheld the conviction. When Crawford was argued before the U.S. Supreme Court in November 2003, the guiding principle for two decades had been that the U.S. Supreme Court has tolerated admission of out-of-court statements against the accused, without cross-examination, if the statements are deemed \u27reliable\u27 or \u27trustworthy,\u27 according to Friedman. But in Crawford, the U.S. Supreme Court did a sharp about-face, holding that a \u27testimonial\u27 statement cannot be admitted against an accused, no matter how reliable a court may deem it to be, unless the accused has had an adequate opportunity to cross-examine the witness who made the statement. Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers\u27 design to afford the states flexibility in their development of hearsay law - as does Roberts [Roberts v. Ohio, 448 U.S. 56 (1980)], and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether, Justice Antonin Scalia wrote for the Court in Crawford. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. We leave for another day any effore to spell out a comprehensive definition of \u27testimonial\u27. Crawford is not only a vindication of the rights of the accused, but a victory for fidelity to constitutional text and intent, Friedman writes in the article from which this excerpt is taken. And yet the decision leaves many open questions, and all lawyers involved in the criminal justice process will have to adjust to the new regime that it creates