Citation

Ross J. J. Crim. Law Criminol. 2006; 97(1): 147-217.

Copyright

(Copyright © 2006, Northwestern University School of Law)

DOI

unavailable

PMID

unavailable

Abstract

A controversy has raged since the U.S. Supreme Court altered the Confrontation Clause landscape in Crawford v. Washington. There, the Court coined the term "testimonial" as a means of determining whether a person who makes an out-of-court statement is a witness against the defendant and must therefore testify in person. This Article advocates a new definition that would be more in keeping with the meaning of the word "testimony" and with the functions served by the Confrontation Clause. Currently the Court determines whether a hearsay declarant is a witness based upon what occurred at the time the person made his out-of-court statement. Instead, this Article proposes that the Court should decide if out-of-court statements constitute testimony based on whether the declarants functioned as witnesses against the defendant at trial. With the recent case of Davis v. Washington, the Supreme Court had a chance to refine the concept of "testimonial." This Article critiques Davis and illustrates how the application of the definition proposed here would have avoided Davis' confused and contradictory reasoning. Shifting the timeframe from the production of evidence to the use of the evidence in the courtroom will create a jurisprudence more in line with Crawford's promise to revive an important trial right for those accused of crimes.