Vanderbilt Law Review

First Page



The Confrontation Clause of the Sixth Amendment to the U.S. Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right .. . to be confronted with the witnesses against him."' When the Supreme Court decided Crawford v. Washington in 2004, it established a new standard for assessing the scope of this right and determining when hearsay is admissible as trial evidence against a criminal defendant. Rather than basing decisions regarding a defendant's right to confrontation on a judicial inquiry into the reliability of a particular statement, an approach typified by the Court's earlier decision of Ohio v. Roberts, the Crawford Court decided that all "testimonial" statements required confrontation at trial, with two exceptions: (1) when the accused has an opportunity to cross-examine the declarant at a prior proceeding, and (2) for hearsay exceptions in existence at the time of founding, namely the dying declaration exception. Although the Court made "testimonial" the touchstone for assessing hearsay statements in relation to the Confrontation Clause, it failed to define this term. Instead, the Court relied on a few vague descriptions of "testimonial" statements, asserting that such statements were made in a context that would lead to the reasonable belief that the government would use the statements in a later criminal prosecution.

In the years since the Supreme Court decided Crawford, lower courts have struggled to apply the new "testimonial" test, leading to divergent case law on a number of common hearsay situations. The Court has already revisited the issue multiple times in cases such as Davis v. Washington and Melendez-Diaz v. Massachusetts. These cases, however, did little to resolve the confusion that still exists in the lower courts on a number of issues. Worse still, the cases arguably created even more confusion than existed before. For instance, dictum in Melendez-Diaz suggested that a certified statement used to prove the absence of a public record and thereby the nonoccurrence or nonexistence of a matter, which is the common exception to the hearsay rule addressed in Federal Rule of Evidence 803(10), is testimonial in nature and therefore requires confrontation at trial. This dictum is directly contrary to settled practice even after Crawford, which allowed these sorts of certified statements, although they were hearsay, to be admitted as evidence at trial without confrontation of the declarant.