Crawford v Washington involved the admittance of a wife's statement to police against her husband at his trial for stabbing a man. The Supreme Court overruled prior precedent that allowed out-of-court statements if reliable, finding this violated the Confrontation Clause. Two later companion cases provided more guidance, finding a 911 call describing ongoing events was nontestimonial but a signed affidavit of past events was testimonial. However, the Court has still not provided a comprehensive definition of "testimonial" and what types of statements implicate the Confrontation Clause.

1. Crawford v Washington Analysis
Crawford v Washington (541 U.S. 36, 2004) was a Supreme Court case involving the
admittance of a wife’s statement to police officers against her husband. Petitioner Michael
Crawford stabbed a man after he allegedly tried to rape his wife, Sylvia. Police arrested the
Petitioner later that night. After Miranda warnings had been read, detectives interrogated the
husband and the wife separately. The interrogation took place at a police station and involved a
past crime. This is relevant because this is not an “in the moment” situation. At the trial, the
recorded tape was introduced into evidence by the prosecutor for the jury from the interrogation
of the wife. Her husband was trying to prove self-defense and invoked the marital privilege so
the wife could not testify. The husband challenged the admittance of the recording based on a
violation of his Sixth Amendment right to confrontation. This Amendment states “in all criminal
prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against
him." This right is usually a face to face confrontation at a criminal trial. So the question became
one involving Confrontation and tested the process of reliability that had been set out in Ohio v
Roberts (1980). The Supreme Court granted certiorari to review the case under Confrontation
Clause grounds.
In a previous Supreme Court case, Ohio v Roberts (448 U.S. 56, 1980), the Supreme Court
had held “When a hearsay declarant is not present for cross-examination at trial, the
Confrontation Clause normally requires a showing that he is unavailable. Even then, his
statement is admissible only if it bears adequate "indicia of reliability." Crawford overruled the
two prong test set out by Ohio v Roberts. The test said that out of court statements could be
entered into evidence if the statement fit with a “firmly rooted” hearsay exception or if the

2. statement had adequate “indiciaof reliability.” Reliabilityrequires proving trustworthiness of the
witness making any statements against the accused. In Crawford, the Supreme Court majority
believed that “reliability is an amorphous, if not entirely subjective, concept… judges, like other
government officers, cannot always be trusted to safeguard the rights of the people.” Therefore,
the reliability standard relied on in a prong of Ohio v Roberts (1980) is no longer good law after
24 years of this being in practice and used for testimonial hearsay purposes.
The Hearsay Rule and Exceptions
What is the “Hearsay Rule” and the “firmly rooted” exceptions to the Rule? According to
the Federal Rules of Evidence (FRE) Rule802 (c), is defined as "a statement, other than one made
by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of
the matter asserted" (Nemeth, 2001, p. 20, Para 5), (Jones, K., 2010). The declarant is the
individual offering the out of court statement but is unavailable to testify in court. A statement
that is made out of court but usually used to prove truthfulness of what the statement is being
made about. There are generally two typed of hearsay: assertion and declarant. The ladder being
the one used the most. This type of hearsay is generally used to prove or disprove credibility by
using individual behavior. The Rules against hearsay is long standing. The exceptions to this rule
are in place regardless of whether or not the witness can testify. Under the Federal Rules of
Evidence, Rule 803, there are a total of 24 hearsay exceptions consisting of present sense
impression, excited utterance, then- existing physical, mental, or emotional condition, family
records, bank records, etc.
What is testimonial hearsay under or after Crawford v. Washington?

3. In the case of Crawford, the Supreme Court ruled when police officers take a statement
of persons during an interrogation, this is “testimonial” evidence. Therefore, if the witness who
made the statements is legally "unavailable" at the time of trial, in order for the hearsay
statements to be admissible, the defendant must have had the opportunity for cross
examination. The Supreme Court ruled the wife’s testimony (out of court statement made to
police) was not admissible at the trial due to a violation the Confrontation Clause. Crawford v
Washington has left many questions in the minds of legal scholars, prosecutors, and professors
of Law as to what the definition of “testimonial” is and when to know the difference. Crawford
changed the rules of testimonial hearsay in a few ways although the Opinion of the Court gives
no real definition of what testimonial means in this sense. Justice Scalia left "for another day any
effort to spell out a comprehensive definition of 'testimonial.'" The Court ruled that the Sixth
Amendment's Confrontation Clause gives defendants the right to confront witnesses and cross-
examine their testimony. This includes testimony police gather during an investigation. The Court
reasoned that the Framers intended the Confrontation Clause to prohibit out-of-court testimony
as evidence against defendants. By allowing out-of-court testimony if it was "reliable," the
Roberts decision departed from the Framers' intent. The Court overruled Roberts. Scalia looked
to historical cases to find the meaning of the Sixth Amendment. He turns to a number of cases
for the writing of the Majority opinion. Paraphrasing what Scalia mentions in Crawford, three
years after the adoption of the Sixth Amendment, in State v Webb (2 N.C. 103, 1794), there was
a ruling about depositions only being read in the presence of the accused. Following this case,
there were a few more cases which hinted towards only allowing statements to be made if there
was a prior chance for confrontation.

4. Where it would have been helpful for the Court to define what is and what is not
considered testimonial, instead, they “left this for a later date.” There are possibilities of the
definition mentioned in the case. One of these definitions says things that “one could reasonably
expect to be used prosecutorially.” What does this mean? Does this mean anything that is said
at any point in time to an officer or other law official is testimonial because it could possibly be
used prosecutorially? If someone says something to an officer in the heat of a moment, this is
considered testimonial evidence under Crawford. Without being able to cross- examine what is
said, there will be no chance of admitting the evidence and a person could walk free. This is a
very stringent rule to follow for prosecutors in the courtroom.
Shortly following Crawford v Washington, two companion Supreme Court cases arose
better attempting to define a line between “testimonial” and “non-testimonial.” In the case of
Davis v. Washington, Michelle McCottry made a 911 call after a domestic violence dispute. She
claimed to the tele-communicator her former boyfriend, peititioner Davis, had assaulted her and
fled the scene. The 911 transcript was admitted into evidence even though McCottry did not
testify at the trial. Petitioner Davis challenged this on Confrontation Clause grounds. In its
companion case, Hammond v Indiana, police responded to a domestic disturbance at the home
of Amy and Hershel Hammond. Amy granted the officers admission into the home and kept them
separated. The officers then had Amy complete and sign a battery affidavit. This was admitted
into evidence and Amy did not testify at the trial. Petitioner Hammond challengedthe admittance
of this affidavit on Confrontation Clause grounds because he had no chance to cross examine.
These cases dive in a little further into what is considered testimonial. What had to be decided in
the case of Davis v Washington was whether or not the 911 call was considered testimonial and

5. could be challenged on Confrontation Clause grounds using the case of Crawford. In Crawford,
the interrogation being held at a police station meant there was enough time to have passed for
the crime to be considered a “past crime.” Whereas in Davis, the 911 call made to police was
describing events “as they actually happened.” So, the statement given in Davis was believed
“that its primary purpose was to enable police assistance to meet an ongoing emergency. She
was not acting as a witness or testifying.” (Davis v Washington) Therefore, the 911 call did not
constitute “testimonial hearsay” and was not subject to the Confrontation Clause. Davis was
subsequently convicted. However, in the case of Hammond v Indiana, the affidavit given by Amy
Hammond was considered testimonial. The reasons for this are because Amy Hammond had told
police everything was fine upon their arrival, the officers separated the two and took separate
statements, and Amy was inthe protection of the policeand could reasonably feelsafe.The Court
saw the difference in these two cases as the time that had passed and whether or not Hammond
or McCottry was in police custody. Where McCottry made a 911 call accounting events as they
were happening, Hammond signed an affidavit viewed as telling a story of a past crime. The
Court’s definition given in these two cases was “Statements are nontestimonial when made in
the course of police interrogation under circumstances objectively indicating that the primary
purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They
are testimonial when the circumstances indicate that there is no ongoing emergency, and that
the primary purpose of the interrogation is to establish or prove past events potentially relevant
to later criminal prosecution.” (Davis v Washington, Hammond v Indiana 547 U.S. 813, 822, 2006)
So these cases give a little more insight into the definition of testimonial and nontestimonial
evidence and what is and is not subject to Confrontation Clause scrutiny.

6. So does this mean that all 911 calls are not testimonial if there is an “ongoing
emergency?” For instance, what if someone calls 911 and gives knowledge of what is actually
happening, who did it, what they are doing it with, etc? Would this not be subject to
Confrontation Clause scrutiny if the evidence were to be admitted in Court? I can see the
difference in the two above mentioned cases, but what if the cases overlap? When someone
makes a 911 call about an ongoing emergency, can a reasonable person think these statements
will not be used at a later date? In Crawford, this is one if the hinted at definitions of
“testimonial.” Ifa “reasonable”person were listening to the transcript of a 911 callthat had made
a certain person appear guilty of a specific crime, how is this not considered testimonial under
Crawford? Any person before making a 911 call reasonably knows that if they make a 911 call in
the future for some “ongoing emergency,” this can be used for prosecutor purposes. These
definitions are a bit contradictory. Whether or not there is someone telling a story of current
events on a phone call or past events at a police station, this is still someone’s side of a story. If
the 911 operator is posing questions, couldn’t this be said to be for prosecutorial purposes as
well as for assistance. In some cases, this could solely be for future prosecutorial purposes. Does
this make the statements testimonial when the government official begins to ask questions, at
least some of the time?
For instance, I will combine the facts of Crawford and Davis a bit. Let’s say a husband and
wife get into a domestic disturbance after the wife witnesses her husband commit some other
crime. For the purpose of my point, let’s say he hit another woman and the wife witnessed this.
Obviously the husband has something wrong in his head to hit the first woman but he is then in
a fightwith his wife about the matter becausethe wife threatens to go to the police. The husband

7. then takes the wife’s cell phone (they have no house phone) and leaves the premises. The wife,
although battered and bruised decides to walk to the police station due to lack of phone to call
the police. Once there, she tells the officers about the night’s events in a panic- stricken state.
So, in this scenario, would what the woman says to the officers be testimonial hearsay or
constitute an “ongoing emergency? According to the Crawford decision, would the wife’s
statement or recording not be allowed into evidence because the husband could invoke the
marital privilege, not have his wife testify at trial, and not have a chance for confrontation? Or
would the statement given to police fall under a hearsay exception and not be considered
testimonial due to the short amount of time that had elapsed from the even to the telling of
police? If there was 30 minutes between the domestic disturbance and telling the story to the
police, would this make a difference? What if there was an hour because the wife lives an hour
walk from the police station? Does the wife going to the police station make the statement
“formal” under Crawford or Davis? Is this the wife telling the officers of a past crime? What if the
scenario’s facts are slightly changed and the husband did not take the cell phone with him when
he left? When the woman calls 911after the husband leaves and tells the dispatcher of the night’s
events, would this still constitute an “ongoing emergency” according to Davis since the husband
has left the premises? Or would this constitute testimonial hearsay under Crawford and be
subject to the Confrontation Clause rendering that 911 transcript subject to a more stringent
scrutiny? What is the “primary purpose” involved with the hypothetical scenarios? In the case of
Crawford, should the ruling and application of the ruling be more fact specific for use in later
cases?

8. What about when a declarant is dead and there is not a chance for Confrontation when
the Petitioner goes to trial? In another Supreme Court decision, Michigan v. Bryant (562 U.S. ___,
2011), the Court needed to decide whether or not a dying victim’s statement given to police is
considered testimonial. Some facts of the case are: police responded to a call at a gas station
where there was a report of a man being shot, they found a man lying beside his car bleeding
and hurting. The man stated he had driven to the gas station after being shot at a house
approximately 6 blocks away from the gas station. The man lying on the ground identified the
shooter to officers and told them the location of where he had been shot. The officers went to
the location the man suggestedlooking for the defendant but did not find him. They did find what
“appeared to be blood and a bullet on the defendant’s back porch and what the police believed
to be a bullet hole in the back door.” The man later died and the shooter was taken to court and
convicted of second-degree murder, being a felon in possession of a firearm, and possession of a
firearm during the commission of a felony. So was this statement given to police testimonial in
nature or was the “primary purpose to assist police in an ongoing emergency?” The initial trial
had reversed the conviction saying there was a violation of the Confrontation Clause due to the
declarant’s death. This went to trial before the decisions of Crawford and Davis. When the
Supreme Court granted certiorari, after the decisions Crawford and Davis, the Supreme Court
held “…the circumstances of the interaction between the victim ... and the police objectively
indicate that the 'primary purpose of the interrogation' was 'to enable police assistance to meet
an ongoing emergency.' Therefore, the victim's ... identification and description of the shooter
and the location of the shooting were not testimonial statements, and their admissionat Bryant’s
trial did not violate the Confrontation Clause." (Michigan v. Bryant, 562 U.S. _, 131 S.Ct. 1143

9. (2011) (quoting Davis v. Washington, 547 U.S. 813, 822 (2006)). The actions taken in this case
constitute an “ongoing emergency” because the man was armed and shot the man lying in the
parking lot. This man posed a threat to either officers or the public or both. What helps make this
statement to officers nontestimonial is the fact that there was no actual structure to the
questions posed by the officers upon arrival. What the man had offered to police was assistance
in capturing the armed suspect quickly. Also, under Crawford, the man lying on the ground
bleeding was probably not thinking about the statements being used for “future prosecutorial
purposes.”
So, a trend I am noticing for the definitions of testimonial and nontestimonial when it
comes to statements given to the police is the measure of formality that is used and the setting
in which the interrogation, questioning, or statements are being made. This seems like such a
case by case situation that can have similar components to Crawford or Davis, but there will
always be something a bit different. I am adding another hypothetical scenario to change the
facts of Michigan v Bryant slightly. What if the police responded to a report of a shooting and
could not locate the individual as quickly as they did in the Bryant case? For instance, what if
someone had heard a gunshot in their neighborhood and called the police for assistance? Well,
under Davis the 911 transcript could be entered into evidence. During the 911 call,he states what
he saw to the dispatcher. He claims he saw a man with a red shirt and a black hat shoot another
man through a window. He also says it was a handgun used in the shooting. When the police
arrive, some of the other people in the neighborhood tell them the man that was shot had been
taken to a hospital and was badly injured. A couple officers stay in the neighborhood to look for
the suspect that committed the shooting and a couple officers go in search of which hospital the

10. man had gone to. The police officers staying behind in the neighborhood are getting all kinds of
information from the neighborhood residents about the events of the shooting. The person who
made the 911 call tells the officers they saw someone with a red shirt and a black hat through a
window shoot the individual. He says he never sawthe shooter’s face. This person tells the officer
an accurate description of the suspect in question. Meanwhile, the other officers have visited
two separate hospitals letting a total of about two hours elapse. When they finally get to speak
to the man that was shot, he is in stable condition and laying in the emergency room. He is
speaking coherently to his friend that brought him to the hospital. The officers ask him if they
can ask a few questions about the events of the night. The man responds, “Yes.” The questioning
from the police proceeds for a certain amount of time giving the officers needed information
about the suspect and how the events took place. The man gives police a description of what the
man was wearing, what he looks like, and what he thought he was there for. The officers then
leave and rejoin in the effort of finding the shooter. The officers in the neighborhood find a gun
2 blocks from where the shooting took place. They find a man similar to the description given
and wearing the same clothes walking down the road a couple blocks from the neighborhood.
The man has a gun on him but shows no threat to police when apprehended. There is no way to
prove this particular gun was used in the shooting (hypothetically). The man (although he
matched the description) claims no knowledge of the night’s events. While the man is being
questioned by police and the police think they have a strong case against the man, the man in
the hospital unexpectedly dies two weeks later due to complications.
Using Crawford, Davis, and Bryant in the previous scenario, what could be considered
testimonial and nontestimonial in the events of the hypothetical situation? In the amount of time

11. that had elapsed between the shooting and the questioning of the person who was shot, and
adding the fact that the man was stable and able to calmly answer questions, would this be
considered testimonial in which case the shooter should have the chance for cross examination?
Or in a case like that, would this still be considered “assisting the police in an ongoing
emergency?” Considering the man apprehended for the shooting was not posing a threat to
officers and answered their questions, could this still be considered an “ongoing emergency?”
Even if the police know the man they had apprehended was responsible for the shooting, they
can’t prove it beyond a reasonable doubt without the statement from the man in the hospital.
Would there be another exception to the rule spelled out by Crawford with facts such as this or
would they follow the guidelines of the right to confrontation? Even though the questioning did
not take place at a station house, this would probably still be considered a formal investigation.
The man no longer seemed in a panic or scared because he was at a hospital and then in the
protection of police custody. Those facts seem similar to those in Crawford. According to
Crawford, this statement would probably not be admitted in a trial against the shooter due to a
Confrontation Clause violation. This questioning took place in a hospital setting and involved
telling of a past crime. Since the reliability standard set in Ohio v Roberts was overruled, proving
reliability is not an option. Under Crawford, since the facts of that case were taken in a station
house and was considered a “formal investigation,” the tape was not admissible at trial. So, in
this case, if the police had taped the interrogation in the hospital, would that tape be admissible
at the trial due to the death of the man? Under Davis, the 911 call made to the police could be
admitted because these statements were not “testimonial.” They were “describing events as
they actually happened.” The same man that had made the call could have his statement given

12. to police admitted into evidence under Davis, because he was “assisting with an ongoing
investigation.” However, what the man saw was not very definitive for the case and actually
apprehending a suspect. There is no way to prove that one specific man that was found and
happened to have a gun actually committed the shooting. However, the statement the man that
was shot gave in the hospital has a detailed description of the man that shot him. There is a fine
line between making this a “testimonial” or a “nontestimonial” statement and allowing the
admittance in court without the accused having the right to confrontation. Using Michigan v
Brant (2011), there was not as much time as there was in the hypothetical case. The man in
Bryant was found wounded in the parking lot of a gas station obviously still excited about the
incident and bleeding. This was an axample of an ongoing emergency because of the amount of
time involved and the possibility of more violence. However, in this case, there was quite a bit of
time that had passed from the shooting to the questioning of the victim. The victim had a cooling
off time and was calmand coherent when the officers spoke to him. With comparing the facts of
the hypothetical caseto the ones in Bryant, it does not seemlike the statement could be admitted
on these grounds either because the “ongoing emergency” period has enough time to dissipate
before the questioning of the man in the hospital. My assumption is the facts of the case would
be looked at under all three of the above cases and a new rule would come out with a better
definition of what testimonial is and where it begins in investigations into a crime. Since there is
not a chance for Confrontation, what could be used to introduce the man in the hospital’s
statement?
This is a hard question to answer and I am not sure the statement could legally be
introduced into evidence unless some other hearsay exception could be found in the process.

13. After the amount of time that had passed, the recording is no longer a “present- sense
impression. The man was obviously unavailable to testify due to death, but the man did not have
a sense of impending death because his condition had been stabilized. He did not die very soon
after the investigation by police, he died two weeks after the questioning. So, this hearsay
exception would not get the recording admitted. (Fed. R. Evid. 804(2)) When applying the rules
against hearsay and the exceptions to these rules, it does not seem like this recording could be
admitted into evidence at all. This is still telling a story of a past event. (Crawford v Washington)
Also the ruling for a slight definition of testimonial in the Davis and Hammond cases was.. “They
are testimonial when the circumstances indicate that there is no ongoing emergency, and that
the primary purpose of the interrogation is to establish or prove past events potentially relevant
to later criminal prosecution.” The recording of the man in the hospital is then clearly testimonial
and could not be admitted. So does the shooter get to walk free because the only real piece of
evidence that links him to the crime is inadmissible because of Confrontation issues? According
to all the cases, hearsay, and exceptions for hearsay, yes. How is this justice when someone dies
because of a shooting and cannot admit his testimony to the police because of no confrontation?
I truly wonder if the law would be rewritten and a new definition or exception would be
introduced because of the facts of this case. This also leads me to wonder if the Supreme Court
is making definitions just as they go for evidence based on their interpretation of the Constitution
on some specific day. I do not want to believe that the shooter in that case would walk free but I
also do not want to believe the Supreme Court would completely rewrite another definition of
testimonial or exceptions because prosecutors could not convict this man. The Supreme Court
seems to make the definitions that best serve what they want the outcome to be in these

14. particular cases and have used any means and words necessary to accomplish that goal. That’s
justice..
Level of formality during questioning
Under Crawford, what is a police interrogation? When does questioning formally turn to
an interrogation making the statements testimonial? Crawford states, “whatever else the term
covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury,
or at a former trial; and to police interrogations.” (Crawford, 2004. Italics added) So, surely
Crawford does not apply to everything said to officers. For example, if someone is solely asking
for help and in a state of panic, this cannot be considered a testimonial statement. However,
what if in the process of this person telling an officer what happened, they give some detail of
what crime had been committed and the police officer starts asking questions? Does this shift
what would be an “excited utterance” into a police interrogation? Is this person still an objective
witness or have they become a declarant? Scalia makes a distinction between whether a
“declarant” or an “objective witness” could “reasonably believe that the statement would be
available for use at a later trial.” (Crawford, 2004) If someone is telling an authority figure
something that involves a crime, how can this not be considered “testimonial” and subject to
Crawford? The excited utterance exception does not apply when a police officer or other
government authority asks questions as far as I know. In the Bryant case, the police officers had
an “ongoing emergency situation.” This made the questioning nontestimonial considering the
primary purpose was to secure the scene and keep people safe. Does this transfer in another
case? The initial responses to police questions can be considered nontestimonial with the
circumstances involved in the case. However, when shifting to the “primary purpose” rule, if the

15. police determine there is no ongoing emergency and keep questioning the declarant, this
becomes testimonial. Once the primary purpose shifts to suspect apprehension is where I see
the words being spoken to government officials as becoming testimonial. If the crime is now
considered a “past crime,” this shifts from nontestimonial to testimonial under Crawford and
Bryant. What about the “objective witness”standard? If an objective witness was speaking to the
police and just providing information known to them, is this testimonial? Probably, under
Crawford. This case seems to make for a lot more work for prosecutors to round up witness so
there is no Sixth Amendment violation. The facts in Crawford provide that the two suspects were
in custody at the time of questioning. It seems the cases following Crawford involving testimonial
hearsay would have to be a little more fact- specific to Crawford. The woman and her husband
were in custody and had been read their rights then were questioned formally. Under Miranda
v. Arizona (384 U.S. 436 (1966)), in the Majority Opinion, they state “By custodial interrogation,
we mean questioning initiated by law enforcement officers after a person has been taken into
custody or otherwise deprived of his freedom of action in any significant way.” If the definition
of interrogation is to be applied, this definitely should be more factspecificfor testimonial. Under
formality, in the case of Crawford, the fact that the statements were taken after their rights had
been read and they were in police custody at the police station, this is definitely a formal
investigation. Why does the scope of Crawford touch other cases so intensely on Confrontation
Clause grounds when the facts differ from the original case so much? For instance, in Bryant,
there was no formality to the questioning. Yet, in Justice Scalia’s sole dissenting opinion, he
argued this was subject to the Sixth Amendment because the statements were testimonial in
nature. Had a real definition been provided for the term “testimonial” in Crawford, there could

16. have been a lot of avoided confusion as to when this term attaches. When looking at when
testimonial applies to words spoken to the police, there is the question of whether or not the
police are “interrogating” the witness, or if an “objective witness could reasonably believe that
the statement would be available for use at a later trial.” This is a very limiting definition. When
a person makes a statement to a government official (in this instance, a police officer), it is hard
to tell why it would not be considered testimonial under Crawford. Perhaps this is for protection
of rights against the possible misuse of statements by prosecutors or other government officials
during ex parte examinations. Justice Scalia, in the Majority opinion , says “Involvement of
government officers in the production of testimony with an eye toward trial presents unique
potential for prosecutorial abuse — a fact borne out time and again throughout a history with
which the Framers were keenly familiar.” If the eyes are solely towards prosecution, a certain
bias can come and the questioning can take on the appearance of leading. A component to
Crawford is protecting against this making these types of statements “testimonial.”
What if a statement is made to a private person? Crawford makes a distinction of what is
and is not involved with the Sixth Amendment when it comes to testimonial hearsay. Crawford
notes that “an off-hand, overheard remark” may be excluded as inadmissible hearsay, but its
admission does not implicate the Sixth Amendment because it “bears little resemblance to the
civil-law abuses the Confrontation Clause targeted.” For instance, some type of counselor, a
friend, or a private attorney. Do these statements fall outside the reach of Crawford? If someone
were to tell a rape counselor about their experience being raped and then decided to come
forward to the police after advice from said counselor, would the notes or any other type of
documentation from that instance with the counselor be admissible in court if the woman did

17. not testify? If these statements were made to someone that is not a government official, how
can the rationale in Crawford touch them? Would the defendant still have ground to stand on
with invoking the Sixth Amendment right to Confrontation? If the primary focus of the admission
of being raped to the rape counselor was not to eventually prosecute someone, this statement
would be considered nontestimonial under Crawford. If there was no intent for use at a later
prosecution, this would be outside the boundaries set by Crawford or Bryant. Let’s say the
defendant is already on trial for raping someone else before the initial woman goes to the police.
Can the notes or documentation from talking to a private person be admitted into evidence or
would this be testimonial hearsay? Can this be used as a way around Confrontation in later cases?
For instance, if someone wanted something known about a crime, could they just tell a private
attorney this and let the private attorney say something in court and never have to testify?
Probably not, but under Crawford, it could be argued that Justice Scalia’s Opinion is exclusively
concerned with government involvement. This case seems to say that government involvement
is a necessary component to making a statement testimonial.
Where does Crawford not reach?
Crawford touches testimonial hearsay, government involvement, and the Sixth
Amendment right to Confrontation. The rules created in Crawford do not reach to statements
that are not testimonial. In the facts of the case Tennessee v Street (471 U.S. 409, 1985), the
State in the state court trial relied on a confession made to the Sheriff. Respondent claimed his
confession was derived from an accomplice’s written confessionand the Sheriff coerced him into
confessing to the same. To prove this inaccurate, the State called the Sheriff. The Sherriff denied
ever letting respondent read the confession of his accomplice. The confession was read to the

18. jury not to prove truth, but for rebuttal purposes. The prosecutor used the Sheriff’s testimony to
shed light to the differences between the confessions. Respondent was found guilty and
sentenced to life imprisonment. The Tennessee Court of Criminal Appeals reversed, holding that
the use of the Sheriff’s testimony denied Respondent the Sixth Amendment right to
Confrontation. The Supreme Court held “Respondent's rights under the Confrontation Clause of
the Sixth Amendment were not violated by the introduction of the accomplice's confession for
rebuttal purposes.” One of the rationales behind this decisionwas “The nonhearsay aspectof the
accomplice's confession -- not to prove what happened at the murder scene but to prove what
happened when respondent confessed -- raises no Confrontation Clause concerns.” (471 U. S.
413-414: quoted from Justia)
If evidence is offered as proof of truthfulness rather than proof of what happened, this is
outside the reach of Crawford. These types of statements are not testimonial in nature because
they are not telling a story of what happened but they are trying to prove the truthfulness of the
statement in question. In Crawford, Justice Scalia says, “The clause.. does not bar the use of
testimonial statements for purposes other than establishing the truth of the matter asserted.”
(Tennessee v Street, quoted in Crawford)
Also, Crawford is not implicated when the witness testifies.In a footnote by JusticeScalia,
he says, “We reiterate that, when the declarant appears for cross- examination at trial, the
Confrontation Clause places no constraints at all on the use of his prior testimonial statements.”
(California v Green, 339 U.S. 149 (1970): quoted in Crawford) The rules set out in Crawford do
not reach a trial where the witness testifies and is subject to cross examination. Anything this

19. witness has said prior to trial is admissible against the defendant once they agree to testify in
court.
In Californiav Green (339 U.S. 149 (1970)), part of the facts were inconsistent statements
given by a witness from prior testimony and in court. In the Majority opinion of this case,
streaming from a previous decision in People v Johnson, the Court says, “the Confrontation
Clausedoes not require excluding from evidence the prior statements of a witness who concedes
making the statements, and who may be asked to defend or otherwise explain the inconsistency
between his prior and his present version of the events in question, thus opening himself to full
cross-examination at trial as to both stories.” This covers conflicting stories and memory loss in
my opinion. Whether or not they accurately remember or testify under oath the exact samefacts,
they are still being subject to cross- examination. This takes inconsistent statements where the
witness is availableto testifyoutside the reach of Crawford and inadmissibletestimonial hearsay.
Conclusion
The opinion in Crawford v Washington left many prosecutors, law scholars, and
government officials in the dark as to what the clear definition of “testimonial” is and is not. The
rule against unsworn testimony being admitted into evidence is unclear and limiting. The narrow
scope of Crawford has left evidence that prior to the case was admissible, inadmissible. Even
under hearsay exceptions, Justice Scalia said, “Where testimonial evidence is at issue, however,
the Sixth Amendment demands what the common law required: unavailability and a prior
opportunity for cross-examination.” (Crawford, 2004) This puts a huge damper on any evidence-
based prosecution. In instances such as the facts or Crawford, the facts of Davis and Bryant, the

20. hypothetical scenarios, domestic and family violence, and any case where the defendant is
unavailable for trial and there has not been a previous chance for cross- examination. Witness
noncooperation, for whatever reason, has already been a big hurdle for prosecutors and
Crawford v Washington made this a bigger issue. When a witness chooses not to further
cooperate and go to trial or make a statement under oath, this person’s recollection or story of
the events will not be admissible in court.
Government involvement is an important aspect to the holding in this case. The reason
for this seemed to be to deter false accusations and prosecutions relying on testimonial hearsay
to win a case with no other evidence. What declarants/ defendants say during police
interrogations, although not exactly defined as to what is the beginning of one (unless custodial
under Miranda), is considered testimonial hearsay. The level of formality will more than likely be
considered on a case- by- case basis if the issue of testimonial hearsay is involved with making a
decision.
A way around the Crawford v. Washington standard is the witness testifying, a prior
chance for confrontation, assisting with an “ongoing emergency,” or making a dying declaration
with the belief of “imminent death.” Other than the exceptions for personal records, are the
hearsay exceptions still relevant at all when the witness does not want to or is unavailable to
testify?

21. References
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(n.d.). Retrieved June 19, 2013, from http://www.law.cornell.edu/rules/fre/rule_803
Supreme Court of the United States (n.d.). PDF document. Retrieved June 19, 2013, from
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22. United States Courts (n.d.). Facts and Case Summary. Retrieved June 20, 2013, from
http://www.uscourts.gov/educational-resources/get-involved/constitution-activities/fifth-
amendment/miranda-criminal-defense/facts-case-summary.aspx