Copyright (c) 2006 Temple University of the Commonwealth System of Higher Education
Temple Law Review
ARTICLE: "WITNESSES" IN THE CONFRONTATION CLAUSE: CRAWFORD V. WASHINGTON, NOAH WEBSTER, AND COMPULSORY PROCESS
79 Temp. L. Rev. 155
Randolph N. Jonakait*
Crawford v. Washington 1 remade the Sixth Amendment's Confrontation Clause. 2 Crawford, in the majority opinion by Justice Scalia, indicated that the Court's previous confrontation framework, as stated in Ohio v. Roberts, 3 for analyzing the reliability of out-of-court statements was wrong. 4 Instead of relying on precedent, Crawford examined what it said was the historical background of the Confrontation Clause, 5 concluding that "the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused... . The Sixth Amendment must be interpreted with this focus in mind." 6 According to the majority, that historical record also supports a second, related proposition: the Confrontation Clause "is most naturally read as a reference to the right of confrontation at common law, admitting only those exceptions established at the time of the founding." 7
Crawford also analyzed the Confrontation Clause's text, coming to the same conclusion that statements akin to those from an ex parte deposition or examination, which Crawford labeled "testimonial," are the right's core concern. 8 The Court did not define "testimonial," 9 but said that "whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." 10 Finally, the Court concluded that the Sixth Amendment's Confrontation Clause prohibits the admission of "testimonial" hearsay ...
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