Criminal Justice Section
Criminal Justice Magazine
Volume 20 Issue 2
Crawford Symposium: Introduction
By Margaret ParisMargaret Paris is a law professor and associate dean for academic affairs at the University of Oregon School of Law. She is also a member of the Criminal Justice magazine editorial board.
A year ago, the United States Supreme Court held in Crawford v. Washington, 124 S. Ct. 1354 (2004), that the Confrontation Clause prohibits the admission of “testimonial hearsay” unless the witness is available for cross-examination. As soon as the decision was released, those of us interested in criminal justice began to speculate about its implications, and we watch with growing fascination as judges and scholars grapple with questions such as these: How is testimonial hearsay to be defined? When seeking to introduce testimonial hearsay, must a prosecutor call the witness to testify, or is Crawford satisfied if the witness is simply made available to the defense? Does Crawford apply at sentencing? Is it retroactive? Under what circumstances will a defendant be found to have forfeited his or her confrontation right?
Another set of questions crops up when a prosecutor wishes to introduce nontestimonial hearsay: Does Crawford apply at all in that context? Is the pre-Crawford reliability test of Ohio v. Roberts still viable? Does nontestimonial hearsay have any Confrontation Clause implications? Do other constitutional sources impose reliability limitations upon such hearsay?
In this issue of Criminal Justice, five evidence experts tackle these and other questions.
Laird Kirkpatrick sets the stage by taking a look backward and a look forward—illuminating Crawford’s jurisprudential history and suggesting some of its potential far-reaching consequences. Next Robert Mosteller hones in on how testimonial hearsay might be defined and makes the case for a “nonformalistic” concept focusing on accusatory statements. Myrna Raeder examines two types of prosecutions that pose special Crawford problems: domestic violence and child abuse. Raeder discusses the applicability of Crawford to excited utterances, 911 calls, and statements made for medical treatment, and she then raises a knotty problem stemming from mandatory child abuse reporting requirements: Do those requirements create testimonial hearsay out of what might otherwise be private disclosures—for example, a patient’s revelation of abuse to her doctor? Richard Friedman, who advocated for the testimonial approach in an amicus brief before the Supreme Court, provides a look at how prosecutors and courts have tried to finesse these and other issues in the post-Crawford world. Finally, Andrew Taslitz looks beyond the Confrontation Clause to suggest that an important concern for reliability can be found in “freestanding” due process—the doctrine that requires fundamental fairness in criminal procedures.
These articles will no doubt resolve some of your questions about Crawford while at the same time raising many others. We hope you enjoy the intellectual feast.