Friday, January 05, 2007

Crawford, Davis, and Way Beyond

Here is a link to the draft of my paper from the conference held at Brooklyn Law School in September. The final version will be published, along with other papers from the conference, in the Brooklyn Law Review. In this paper, among other points, I

--argue that Davis is not inconsistent with the adoption of an objective, declarant-oriented definition of "testimonial."

--argue that Davis does not establish an independent formality requirement for a statement to be deemed testimonial; that is, any requirement of formality that the decision might have created adds nothing to the requirement that the statement have been made in anticipation of prosecutorial use.

--lay out, in more detail than I have on this blog, some of the significant pending issues related to the confrontation right.

--suggest how the teaching of hearsay and confrontation should be totally revamped.

--suggest in broad terms how the law of hearsay ought to be reformed, in light of the fact that the confrontation right is now independently protected, and express the hope that evidence scholarship will advance such reform efforts.

I am happy to post draft scholarship of other authors that is related to the confrontation right.


Paul said...

On page 5 of his paper, Prof. Friedman states that the Court has an unstated (or ambiguously stated) "underlying standard" that is governing its Confrontation Clause jurisprudence laid out in Crawford, and refined in Davis.

I agree that there is a poorly stated "underlying standard" that the Court is operating under. However, unlike Prof. Friedman, I don't believe that standard is untethered to the interrogator's purpose. Nor do I believe that the standard is exclusively tied to Prof. Friedman's declarant-centric approach.

My reading of Crawford and Davis leads me to conclude that the "underlying standard" being enunciated by the Court is as follows: Was the out-of-court statement given or received under circumstances bearing sufficient resemblance to the circumstances that exist when live testimony is given and received in a government run courtroom.

When an witness testifies in court at a criminal proceeding (1) there are no immediate emergency or safety concerns. (Rather, past events are being proven or recreated.); (2) the witness is under oath. (Thus, there is a criminal consequence if the witness elects to lie.); (3) the questioner (on direct exam) is a government official; (4) the statement is elicited in a government-run forum, presided over by a government official; (5) the primary purpose of the questioner/prosecutor is to build a case against the accused; and (6) assuming the witness is competant to testify, he/she would, given the surrounding circumstances, objectively, have some knowledge or understanding that he/she was acting as a witness against someone.

I believe this type of objective "resemblance test" is the "underlying standard" governing the Court's new Confrontation Clause jurisprudence.

Under this "resemblance test," (A)in-court testimony and (B) out-of-court unsworn statements given or received under objective circumstances establishing (1) the primary purpose of the government questioner resembles the primary purpose of a prosecutor eliciting statements on direct exam; (2) there is some degree of formality -- be it a consequence for lying or the nature of the forum; and (3) the declarant's knowledge that they are acting as a witness against someone, are testimonial.

On the other hand, all statements lacking sufficient resemblance to in-court testimony are nontestimonial, unless objective evidence establishes that the statement was given or received for the primary purpose of evading an accused's confrontation right. For example, statements slipped under the courthouse door, accusations volunteered to government officials (or private persons) with the primary purpose of avoiding being cross-examined by an accused.

Under the resemblance standard, all sworn statements would be testimonial.

Under the resemblance standard, some unsworn statements are nontestimonial. For example, statements volunteered during the midst of an emergency or for the primary purpose of addressing immediate safety concerns. Likewise, statements elicited to address an emergency or immediate safety concerns would be nontestimonial. (As the Court noted, testimony given by a witness in court isn't given or recevied to deal with emergencies or immediate safety concerns. It is given and received to build a case against an accused by recreating past events for the jury.)

In sum, I believe the Court is trying to determine how closely the out-of-court statement resembles in-court testimony by a witness. That is the "underlying standard" at the heart of the Court's new Confrontation Clause jurisprudence.

Richard D. Friedman said...

The draft paper linked by this post has now been published, as part of a symposium issue. You can get a link to all the symposium papers at

I never responded to Paul's comment. In Hammon v. Indiana, the state argued for a "resemblance" theory. I don't think anybody in the courtroom when it was argued thought the Court found merit in such an approach.

muebles alcala de henares said...
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