Comment by Stephen Aslett
In Crawford v. Washington, the Supreme Court held that the Sixth Amendment's Confrontation Clause forbids the admission of “testimonial hearsay” against a criminal defendant unless the hearsay declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant. Though the Crawford Court justified its new “testimonial” understanding of the Confrontation Clause, it did not explain why the Clause regulates only the admission of hearsay (i.e. out-of-court statements offered to prove the truth of the matter asserted) rather than the admission of out-of-court statements generally. Instead, the Court asserted as much in a parenthetical sentence at the end of a long footnote: “(The Clause . . . does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted . . .).”
In this Comment, I argue that this sentence, which I call “Crawford's curious dictum,” is incorrect. The Confrontation Clause regulates the admission of all testimonial out-of-court statements against a criminal defendant, not just the admission of testimonial hearsay.
Historical sources reveal that the modern “truth of the matter asserted” understanding of hearsay was unknown to the Framers and did not arise until well after the Sixth Amendment's ratification in 1791. Because Crawford fixes the meaning of the Confrontation Clause at its original understanding, immune from subsequent changes in hearsay law, the “nonhearsay” character of an out-of-court statement under modern hearsay law should be irrelevant for Confrontation Clause purposes. Instead, all that should matter is whether the statement is testimonial.
This conclusion is not merely academic. Prosecutors routinely use Crawford's curious dictum to admit incriminating testimonial nonhearsay against criminal defendants without an opportunity for cross-examination.
About the Author
Stephen Aslett. J.D. candidate 2008, Tulane University School of Law; B.A. 2003, Rice University.
Citation
82 Tul. L. Rev. 297 (2007)