St. Mary's Law Journal


Crawford v. Washington and its progeny demonstrate the difficulty of delineating both the core and the perimeter of the Confrontation Clause. Crawford abrogated Ohio v. Roberts, forcing trial lawyers to re-evaluate the use of various types of hearsay formerly admitted upon a finding of adequate “indicia of reliability.” Later the Court issued two decisions further altering the contours of Confrontation Clause jurisprudence. Michigan v. Bryant and Bullcoming v. New Mexico. With these options, the old Roberts “indicia of reliability” test transformed into the new “primary purpose” test to identify certain testimonial statements. By significantly altering the contours of Confrontation Clause jurisprudence, the Court’s option has left many wondering “what happened” to the Court’s previous directives on the manner. While it is the prosecution’s burden to establish by a preponderance of the evidence that the circumstances of a statement reveal its nontestimonial nature, defense counsel need not idly rest. Enlightened and prepared defense counsel might consider ways to use “the list” aggressively delineated in Bryant. The United States Supreme Court’s opinion in Davis directed criminal trial lawyers and judges to allow substance to control over form. However, confrontation is the bottom line; if a statement is testimonial, the Court has stressed that the Constitution demands confrontation. Confrontation, in turn, forces the witness’s testimony to be subjected to scrutiny by adversarial examination—the “greatest legal engine ever invented for the discovery of truth.”


St. Mary's University School of Law