In Crawford v. Washington, 541 U.S. 36 (2004), Michael Crawford was prosecuted for assaulting a man whom he believed had tried to rape his wife. Crawford claimed self-defense, but the State introduced his wife Sylvia’s tape-recorded statement to police, which tended to undermine that defense, after she declined to testify under Washington’s marital privilege. The Supreme Court held that admitting her statement violated the Sixth Amendment’s Confrontation Clause: when an out-of-court statement is testimonial, the prosecution may use it against a criminal defendant only if the declarant is unavailable and the defendant previously had an opportunity to cross-examine that declarant, regardless of whether a judge considers the statement reliable. The Court thus rejected the open-ended reliability test of Ohio v. Roberts and restored cross-examination as the constitutionally prescribed means of testing testimonial evidence.
The Court did not provide an exhaustive definition of “testimonial,” but used the term principally to describe formal or solemn out-of-court statements made under circumstances in which an objective person would reasonably expect the statement to be used in investigating or prosecuting a crime. The category unquestionably includes testimony from preliminary hearings, grand-jury proceedings, and former trials, as well as statements obtained through police interrogation. Sylvia Crawford’s recorded statement, deliberately elicited by police during a structured interrogation concerning a completed crime, therefore fell within the testimonial core of the Confrontation Clause.
About the author. Christopher S. Carson, J.D., M.A., has practiced law in Milwaukee for 34 years. He holds an M.A. in International Security Studies from Georgetown University, where he was the Bradley Fellow, was formerly with the American Enterprise Institute, and is a contributing editor at the New English Review. Read the full biography.
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