Confrontation, the Legacy of <em>Crawford</em>, and Important Unanswered Questions

The right to confront has a long history. In the United States, the Confrontation Clause provides: “In all criminal prosecutions, the accused shall enjoy the right… to be confronted with the witnesses against him[.]” One of the most troublesome areas of Confrontation Clause jurisprudence has been the Clause’s application to “hearsay statements offered against a criminal defendant pursuant to a hearsay exception or exemption[.]” The Supreme Court’s confrontation analysis in this situation once hinged on the statement’s reliability, with the traditional hearsay rule and its exceptions and exemptions as a guide. But in Crawford v. Washington, the Court considered the right’s historical background and concluded that the anal- ysis should instead be focused on testimoniality: unless the declarant currently testifies, “[w]here testimonial evidence is at issue, . . . the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” Crawford intentionally eschewed defining “testimonial,” perhaps because it would have been challenging to anticipate the consequences of its testimonial approach in various circumstances without specific context. Subsequent cases have sought to interpret Crawford and further define “testimonial,” but many unanswered questions remain.

The purpose of this article is to highlight certain important such questions.