Confrontation Clause Reshaped: Crawford v. Washington

CRS Report for Congress
Confrontation Clause Reshaped:
Crawford v. Washington
Estela I. Velez Pollack
Legislative Attorney
American Law Division
Summary
In Crawford v. Washington, 124 S.Ct. 1354 (2004), the United States Supreme
Court held that to admit hearsay testimonial evidence in criminal prosecutions the Sixth
Amendment, the Confrontation Clause, requires that (1) the witness be unavailable and
(2) the accused had a prior opportunity to cross-examine the witness. This decision
overruled Ohio v. Roberts, 448 U.S. 56 (1980), where the Supreme Court had advanced
a test requiring only that the statement from unavailable witnesses fall within a “firmly
rooted hearsay exception” or bore “particularized guarantees of trustworthiness” in order
to be admissible. In Crawford, the Court conducted an historical analysis of the
Confrontation Clause concluding that a prior opportunity to cross-examine was a
necessary condition for testimonial statements to be admitted against an accused. The
Court held that admitting statements on a judicial finding of reliability was contrary to
constitutional requirements. The Court declined to provide a comprehensive definition
of “testimonial,” but provided some examples, such as testimony at a preliminary
hearing, before a grand jury, or at a former trial, or statements made during police
interrogations. This report provides a summary of the Court’s ruling.
Background
The Sixth Amendment to the United States Constitution, the Confrontation Clause,
provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him . . .”¹ Its purpose is to ensure that an individual
who has been accused of a crime has the opportunity to test the reliability of testimony
presented against him or her by cross-examining the witness. In Crawford v.
Washington,² the Court held that the Sixth Amendment does not allow hearsay³

¹ U.S.C^ONSTI^TUTI^ON,Amendment VI.
² 124 S.Ct 1354 (2004).
³ Hearsay is “a statement, other than one made by the declarant while testifying at the trial or
(continued...)
Congressional Research Service ˜ The Library of Congress

testimonial evidence to be admitted, regardless of its "reliability," unless the witness is
unavailable and the defendant had a prior opportunity for cross-examination. In so⁴
holding, the Court abrogated the rule set out in Ohio v. Roberts which made said
statements admissible if the court deemed them reliable.
Crawford v. Washington
Facts and Proceedings.
Petitioner, Michael Crawford, was tried and convicted for stabbing a man, Kenneth
Lee. When Crawford was arrested the detectives interrogated him and his wife, Sylvia,
twice. Eventually, Crawford confessed that they had gone to Lee’s apartment looking for
him because Crawford was upset over an earlier incident in which Lee had allegedly tried
to rape Crawford’s wife. After finding Lee, a fight broke out in which Crawford stabbed
Lee.⁵
Crawford and Sylvia both gave the detectives similar accounts of the events leading
up to the fight. Crawford stated that he could “swear he had seen [Lee] going for
something before, right before everything happened,” and that he thought Lee had pulled
something out and Crawford was cut when he grabbed for it.⁶ However, Sylvia’s account
of the fight was arguably different from Crawford’s particularly with respect to whether
Lee had drawn a weapon before Crawford assaulted him. Sylvia stated that Lee had lifted
his arms up when Crawford came up to him, then Lee reached into his right-hand pocket
just before Crawford stabbed him. Lee then fell to the ground with his hands open.
Sylvia did not notice any weapons in his hands at that time.⁷
Crawford was charged with assault and attempted murder. At trial, he claimed self-
defense. His wife did not testify at trial because of the state marital privilege.⁸ Since in
the state of Washington the marital privilege does not extend to statements made out-of-
court, the State sought to introduce Sylvia’s statement to the detectives under a hearsay
exception.⁹ The State intended for the statement to refute the self-defense argument. In
response, Crawford argued that admitting the statement would violate his Sixth

³ (...continued)
hearing, offered in evidence to prove the truth of the matter asserted.” The statements need not
be verbal but may also include a written assertion or nonverbal conduct if intended as an
assertion. Federal Rules of Evidence 801.
⁴ 448 U.S. 569 (1980).
⁵ Crawford, 124 S.Ct. at 1357.
⁶ Id.
⁷ Id.
⁸ The marital privilege generally bars a spouse from testifying against his/her spouse without the
latter’s consent. Wash. Rev.Code § 5.60.060(1) (1994).
⁹ Crawford, 124 S.Ct. at 1358; see State v. Burden, 841 P.2d 758, 761 (1992). The State argued
that since Sylvia had admitted that she led Crawford to Lee’s apartment and, therefore, had
facilitated the assault, her statement was admissible under the hearsay exception for statements
against penal interest. Wash. Rule Evid. 804(b)(3).

Amendment right to be confronted with the witnesses against him. The trial court
admitted the statement on the basis of the Supreme Court’s decision in Ohio v. Roberts
which allowed admission of unavailable witness’s statements if the statement bears
“adequate indicia of reliability” and bears “particularized guarantees of trustworthiness.”¹⁰
The prosecution played the tape for the jury and argued during closing argument that it
was “damning evidence” that completely refuted Crawford’s claim of self-defense.¹¹ The
jury convicted Crawford of assault.
On appeal, the Washington Court of Appeals reversed the finding. In reversing, the
court applied a test to determine if Sylvia’s statement bore “particularized guarantees of
trustworthiness.”¹² The Washington Supreme Court reinstated the conviction on the
grounds that Sylvia’s statement did bear guarantees of trustworthiness.¹³ The court found
that Sylvia’s statement overlapped Crawford’s statement, they were virtually identical and
neither statement clearly stated that Lee had a weapon in hand at the time of the
stabbing.¹⁴ Crawford petitioned the Supreme Court for review and the Court granted
certiorari.¹⁵
The issue presented was whether the State’s use of Sylvia’s statement violated the
Confrontation Clause. On March 8, 2004, the Court reversed the judgment of the
Washington Supreme Court and remanded the case holding that the State’s use of Sylvia’s
statement violated the Confrontation Clause because, as far as testimonial evidence is
concerned, confrontation is the only indicium of reliability sufficient to satisfy
constitutional demands.¹⁶
History of the Confrontation Clause.
As noted, the Confrontation Clause provides that “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the witnesses against him. . .”¹⁷
In deciding the case, the Court found that the Constitution alone did not resolve the case
since “witnesses against” a defendant may mean those who actually testify at trial, those
whose statements are offered at trial, or something in-between.¹⁸ Accordingly, the Court
found it necessary to examine the historical background of the Confrontation Clause to
understand its meaning.

¹⁰ Id. at 66. The rule set out in Roberts also allowed statements from unavailable witnesses to be
admitted when the statement falls within a “firmly rooted hearsay exception.”
¹¹ Crawford, 124 S.Ct. at 1358.
¹² Id.
¹³ Id.
¹⁴ Id., citing 54 P.3d 656, 653-654 (2002).
¹⁵ Crawford v. Washington, 539 U.S. 914 (2003).
¹⁶ 124 S.Ct. at 1359-1374. Justice Scalia delivered the opinion for the Court. Chief Justice
Rehnquist, joined by Justice O’Connor, filed a concurring opinion in judgement.
¹⁷ U.S.C^ONSTI^TUTI^ON, Amendment VI.
¹⁸ Id. at 1359.

The Court found that the concept of an accused’s right to confront his or her accuser
dates back to the Roman times;¹⁹ however, the source of the concept for the Constitution
was the English common law.²⁰ Of particular interest to the Court was the trial of Sir
Walter Raleigh for treason. In that trial, Raleigh had been implicated by an alleged
accomplice, Lord Cobham, in an examination before the Privy Council and in a letter.²¹
Raleigh, arguing that “[t]he Proof of the Common Law is by witness and jury” demanded
that the judges call Cobham to appear at the trial.²² The judges refused and Raleigh was
consequently sentenced to death. After the Raleigh trial, the courts developed
unavailability rules, admitting examinations only if the witness was unable to testify in
person.²³
Around the time of the American Revolution many declarations of rights were
adopted by the states which guaranteed a right of confrontation.²⁴ In addition, the First
Congress included the Confrontation Clause in a proposal to amend the Constitution.
This became the Sixth Amendment.²⁵
The Court reasoned that this history supported two inferences about the meaning of
the Sixth Amendment: First, “the principal evil at which the Confrontation Clause was
directed was the civil law mode of criminal procedure,” particularly the use of ex parte
examinations as evidence against the accused.²⁶ Therefore, the Court rejected the view
that the Confrontation Clause applies only to in-court testimony and that the applicability
to out-of-court statements introduced at trial depends on the rules of evidence.²⁷ Second,
the Court reasoned that the “Framers would not have allowed admission of testimonial
statements of a witness who did not appear at trial unless he was unavailable to testify,
and the defendant had had a prior opportunity for cross-examination.”²⁸ The Court noted
that the text of the Sixth Amendment does not suggest that the courts can develop
exceptions to the Confrontation Clause, but rather that only those exceptions established
at the time of its creation are allowed.²⁹ Based on its interpretation of the historical
sources, the Court concluded that a prior opportunity to cross-examine was a necessary,

¹⁹ Id. See also, Coy v. Iowa, 487 U.S. 1012 (1988).
²⁰ Crawford, 124 S.Ct. at 1359.
²¹ Id.
²² Id. at 1360.
²³ Id.
²⁴ Id. at 1362.
²⁵ Id. at 1363.
²⁶ Id.
²⁷ Id. at 1364.
²⁸ Id. at 1355.
²⁹ Id.. See also Mattox v. United States, 156 U.S. 237, 243 (1895); cf. Houser, 26 Mo. at 433-

435.

not merely a sufficient, condition for testimonial statements to be admitted against an
accused.³⁰
Ohio v. Roberts.
Before its decision in Crawford, the Court had allowed a narrow class of exceptions
to the mandatory confrontation of the Sixth Amendment. In Ohio v. Roberts, 1980, the
Court had established the “reliability exception” ruling that certain witness statements
could be allowed into evidence without cross-examining the witness if a judge found that
the statements were sufficiently reliable so as to be trustworthy.³¹ In deciding Crawford,
the Court overruled Roberts on the basis that admitting testimony which has not been
subject to cross-examination on a mere judicial determination of reliability is “akin to
dispensing with jury trial because a defendant is obviously guilty.”³² That, the Court
stated, was not what the Sixth Amendment prescribes.³³ Therefore, the Court concluded
that, for testimonial evidence from a witness not appearing in court to be admissible
against an accused, the witness must be unavailable and the accused must have had a prior
opportunity to cross-examine the witness.³⁴
Holding.
In sum, the Court held that the lower court failed to take into account the
constitutional requirement of confrontation that the statement be subject to cross-
examination when admitting Sylvia’s statement to the police at trial. The lower court had
relied on the Supreme Court’s prior holding in Ohio v. Roberts which allowed hearsay
statements to be admitted at trial based on a judicial finding of reliability. However, in
Crawford, the Court held that the “reliability” test announced in Ohio v. Roberts was
contrary to constitutional requirements. The Court limited its holding to testimonial
evidence stating that where nontestimonial hearsay is at issue, it is consistent with
constitutional requirements to afford the States flexibility in their development of hearsay
law.³⁵ However, the Court did not provide a comprehensive definition of what qualifies
as “testimonial” evidence except to say that at a minimum it includes testimony at a
preliminary hearing, grand jury or at a former trial, and statements made during police
interrogations.³⁶
The Court stressed that the Confrontation Clause does not place any constraints in
the use of prior testimonial statements when the declarant appears at trial, and it does not
bar the use of testimonial statements for purposes other than establishing the truth of the
matter asserted. Furthermore, the Court left the door open for a possible exception to the

³⁰ Id. at 1366-1377.
³¹ Roberts, 448 U.S. at 66.
³² Crawford, 124 S.Ct. at 1371.
³³ Id.
³⁴ Id. at 1374.
³⁵ Id.
³⁶ Id. The Court states that they “leave for another day any effort to spell out a comprehensive
definition of ‘testimonial’.”

confrontation requirement based on historical grounds: dying declarations. The Court
stated that it is possible that the Sixth Amendment incorporates an exception for
testimonial dying declarations, however, it did not rule so conclusively.³⁷
Chief Justice Rehnquist, joined by Justice O’Connor, concurred in the result but
dissented from the majority’s decision to overrule Roberts. They found that the Court’s
interpretation and historical analysis of the Confrontation Clause were unnecessary to
decide the case. Instead, they wrote, the Court’s holding in Idaho v. Wright³⁸ where the
Court held that an out-of-court statement is not admissible simply because its truthfulness
is corroborated by other evidence at trial, was dispositive of the case. Furthermore, they
criticized the Court for not providing a definition of “testimonial” evidence since it
created uncertainty for future trials.³⁹
Commentators have suggested that Crawford is one of the most important Supreme
Court decisions for the criminal litigator in recent years.⁴⁰ Crawford significantly changes
what out-of-court statements will be admissible against a criminal defendant at trial. It
replaces the “reliability analysis” for admission of out-of-court statements of unavailable
witnesses and replaces it with the requirement of prior opportunity to cross-examine. The
holding in Crawford could potentially impact a number of hearsay exceptions used
currently to admit statements from unavailable witnesses. However, the extent of its
impact on the hearsay exceptions is yet to be determined as the Court did not provide a
concrete definition of “testimonial” evidence. Until the Court provides a definition of
“testimonial” evidence, it will be up to prosecutors and defense attorneys to argue the
issue in court.

³⁷ Id. at n. 9. For example, statements can be introduced to show the state of mind of the witness
at the time of the events.
³⁸ 497 U.S. 804 (1990).
³⁹ Id. at 1375-1378.
⁴⁰ See Linda Greenhouse, Court Alters Rule on Statement of Unavailable Witnesses, N^EWY^ORK
T^IME^S, March 9, 2004; U.S. Supreme Court Changes Approach to Admissibility of Out-of-Court
Statements, C^RI^M^I^NALL^AWR^EP^ORTER, Vo. 74, No. 23 (March 10, 2004) available at
[http://litigationcenter.bna.c om/pic2/lit.nsf/id/BNAP-5WXSRV?OpenDocument].