Crawford v Washington
One of the main purposes of the Bill of Rights is to protect the rights of criminal defendants. The Sixth Amendment’s Confrontation Clause guarantees a criminal defendant’s right “to be confronted with the witnesses against him,” which includes the right to cross-examine those witnesses. The Confrontation Clause does not specify whether “witnesses against” includes only those witnesses who appear at trial to testify, those whose statements are introduced at trial, or something in between. Crawford v. Washington, 541 U.S. 36, 42-43 (2004). For many years, trial courts allowed the prosecution to introduce out-of-court statements, even where the declarant was not subject to cross examination, if the statement met a firmly rooted hearsay exception or bore particularized guarantees of trustworthiness. See Ohio v. Roberts, 448 U.S. 56, 66 (1980).
The Supreme Court curtailed that practice in 2004. Crawford v. Washington, 541 U.S. 36 (2004). In Crawford, the prosecution introduced a pretrial statement from the defendant’s wife even though the defendant could not call her at trial for cross-examination due to the marital privilege. The trial court found the statements admissible because the statements carried “particularized guarantees of trustworthiness.” Id. at 40.
The Supreme Court, reversed, finding that introducing the wife’s testimony violated the Confrontation Clause. The Court held that the Confrontation Clause forbids the government from introducing testimonial statements, “such as affidavits, custodial examinations … or similar pretrial statements that declarants would reasonably expect to be used prosecutorially,” unless the declarant is subject to cross examination. Id. at 51-52.
Crawford undoubtedly strengthened a criminal defendant’s right to confront the witnesses against him. But courts struggled with determining whether a witness statement was “testimonial” under Crawford. At one point, the Supreme Court began looking at the “primary purpose” of the testimony—if the “primary purpose” of the statement was to be introduced at trial, the witness must be available for cross examination. Davis v. Washington, 547 U.S. 813, 822 (2012). But neither the Supreme Court nor lower courts have settled on a definition for “testimonial” or single standard for the “primary purpose” test under Crawford.
In a recent dissent from denial of certiorari, Justice Alito and Justice Gorsuch both expressed frustration with Crawford. See Franklin v. New York, No. 24-330 (Mar. 24, 2025). In Franklin, the defendant gave statements to the Criminal Justice Agency, a publicly funded agency that helps defendants prepare for bail hearings. The prosecution later introduced a report containing those statements over the defendant’s objection that the report’s author was not available for cross-examination. Franklin, No. 24-330, at 1 (Gorsuch, J., dissenting). The trial court held the statement was administrative, not testimonial, so not subject to the Confrontation Clause.
Justice Alito and Justice Gorsuch both issued opinions in the denial of certiorari. Justice Alito agreed that the Supreme Court should not have granted certiorari in Franklin, but argued that the Supreme Court should revisit Crawford. Justice Alito observed that Crawford has “not produced predictable and consistent results.” Franklin, No. 24-330, at 1 (Alito, J., concurring in denial of cert). Justice Alito further questioned the Supreme Court’s holding in Crawford that any person who makes a testimonial statement is a “witness” under the Confrontation Clause. Id. at 3-4. Rather, at the time of ratification, “witness” referred only to those who testified at trial. Id. Thus, Justice Alito’s concurrence suggests that he would consider narrowing the protections in Crawford: “If we reconsider Crawford, as I think we should, the result might be a reaffirmation of Crawford or the adoption of an entirely different Confrontation Clause rule.” Id. at 4.
Justice Gorsuch also argued that the Supreme Court should reconsider Crawford. In contrast to Justice Alito, Justice Gorsuch’s statement suggests that trial courts’ use of the “primary purpose” test has improperly narrowed the scope of “testimonial” statements to which the Confrontation Clause applies. Gorsuch reasoned that, “[w]hat matters … is not the purpose for which an out-of-court statement was originally created, but whether the government seeks to use a witness’s statement at trial.” Franklin, No. 24-330, at 6 (Gorsuch, J., concurring in denial). Justice Gorsuch concluded that, “[t]o my mind, all this suggests that we may need to rethink our course sometime soon.” Id.
The Confrontation Clause is one of the Constitution’s most important rights and Crawford is the Supreme Court’s most important recent case on the Confrontation Clause. Now, however, at least two justices are dissatisfied with Crawford’s application, but for different reasons. Thus, it is likely that the Supreme Court will revisit Crawford in the next few years. Defense counsel should be careful to preserve all possible objections to any testimonial statements that the government introduces, or attempts to introduce, at trial.
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