Confronting Testimonial Hearsay: Understanding the New Confrontation Clause

In 2004, the United States Supreme Court rewrote its understanding of the Sixth Amendment Confrontation Clause1 in Crawford v. Washington,2 jettisoning a quarter-century of “reliability” jurisprudence in favor of a new testimonial/non-testimonial analysis. In doing so, the Supreme Court affected seismic change in the landscape of nearly every criminal trial in Illinois and across the United States. At its core, Crawford holds that when a hearsay declarant does not testify at trial, the Confrontation Clause prohibits admitting the declarant’s testimonial statements unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine.3 Even though the Supreme Court revisited the subject two years later in Davis v. Washington,4 many questions remain, leaving some courts scratching their heads. Courts today are looking at various formulae to identify testimonial hearsay. Among the issues pressing courts are: (1) what degree of governmental involvement in procuring a statement is necessary to render that statement testimonial;5 (2) whether a statement’s testimonial status is properly determined by its content or the context in which it is made;6 and (3) identifying the relationship