The Crawford confrontation clause: governmental involvement is key to testimonial hearsay.

Author:Shanes, Daniel B.

Crawford holds that the Confrontation Clause bars a nontestifying declarant's out-of-court testimonial statement unless that declarant is unavailable and the defendant had a chance to cross-examine. The author argues that statements are rarely testimonial unless the government produced them.


In 2004, the United States Supreme Court rewrote its understanding of the Sixth Amendment Confrontation Clause (1) in Crawford v Washington, (2) jettisoning a quarter-century of "reliability" jurisprudence in favor of a new testimonial/non-testimonial analysis. At its core, Crawford holds that when a hearsay declarant does not testify at trial, the Confrontation Clause prohibits admitting the declarant's testimonial statements unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine. (3)

Even though the Supreme Court revisited the subject two years later in Davis v Washington, (4) many questions remain. One of those asks how much government involvement in obtaining the hearsay statement must be present before that statement can be deemed testimonial.

While we cannot say precisely what "testimonial hearsay" consists of, an analysis of Crawford and its progeny shows--and this article posits--that government involvement is a critical element.

Let us begin that analysis with a quick re view of the Confrontation Clause's origins.

Sir Walter Raleigh and testimonial hearsay

In the course of identifying testimonial hearsay as the object of the Confrontation Clause's protection, the Crawford Court repeatedly focused upon "the historical background of the Clause to understand its meaning." (5)

[T]he 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. It was these practices that the Crown deployed in notorious treason cases like Raleigh's; that the Marian statutes invited; that English law's assertion of a right to confrontation was meant to prohibit; and that the founding-era rhetoric decried. The Sixth Amendment must be interpreted with this focus in mind. (6) In both Crawford and Davis, the Court extensively discussed the trial of Sir Walter Raleigh. (7) At that time, government investigators (then variously called magistrates or justices of the peace) took witness statements for use in prosecution in lieu of in-court trial testimony. (8) In Raleigh's trial, one such witness was an alleged co-conspirator, Lord Cobham, who implicated Raleigh in an examination before the Privy Council and in a written letter.

These statements ultimately were read to the jury. Suspecting Cobham would recant, Raleigh demanded that Cobham appear so that he could confront "my accuser before my face...." (9) The judges refused, the jury convicted, and Raleigh was executed. (10)

Crawford identifies Raleigh's case as "a paradigmatic confrontation violation." (11) The Davis Court noted that "[Cobham's statements were used as] 'a weaker substitute for live testimony at trial.'" (12) In other words, Cobham's out-of-court statements--formal declarations procured by the government--were used in lieu of his in-court testimony to convict Raleigh. Understanding the Sixth Amendment "with this focus in mind" (13) makes clear this practice of "trial by affidavit" is the primary concern of the Confrontation Clause. A recurring theme throughout Crawford and Davis, Raleigh's case serves as an excellent illustration of the kind of evidence that constitutes testimonial hearsay.

What constitutes testimonial hearsay?

Although the Court holds up Cobham's statements as the prime example of testimonial hearsay the Confrontation Clause was designed to prohibit, the Court's understanding of what constitutes testimonial hearsay is revealed more by description than definition.

Crawford declares that testimonial hearsay is a "specific type of out-of-court statement" (14) that triggers the Confrontation Clause because it is "hearsay [that] consists of ex parte testimony." (15) Both Crawford and Davis partially describe what constitutes testimonial hearsay. They also clearly identify various types of hearsay that are not testimonial. In the end, it becomes the qualitative differences between those various out-of-court statements that make clear what characterizes testimonial evidence.

As a starting point, Crawford holds that testimonial evidence includes prior testimony and statements made during certain police interrogations. (16) Testimony can come from a variety of settings, including past trials, hearings, grand jury proceedings, plea allocutions, depositions, and affidavits. These sworn or in-court statements include a significant degree of formality and governmental involvement, if from nothing more than placing the declarant under oath. The Court deems such statements plainly testimonial.

In Crawford, the Court noted that by its own terms the Confrontation Clause applies to "witnesses" against the accused. The Court construed the term "witnesses" as those who bear testimony. "An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." (17)

Comparing the practices of Sixteenth Century England to modern procedures, the Crawford Court concluded that the "involvement of government officers in the production of testimonial evidence presents the same risk [of violating the Confrontation Clause], whether the officers are police or justices of the peace." (18) This is because it is "police interrogations [that] bear a striking resemblance to examinations by justices of the peace in England." (19)

Accordingly, in addition to sworn statements, Crawford concluded that testimonial hearsay can also be produced during certain unsworn police...

To continue reading