The 'Horse Stealer's' Trial Returns: How Crawford’s Testimonial-Nontestimonial Dichotomy Harms the Right to Confront Witnesses, the Presumption of Innocence, and the 'Beyond a Reasonable Doubt' Standard

The Sixth Amendment to the United States Constitution provides a defendant to a criminal charge with the right to confront the witnesses against him. In Crawford v. Washington, 541 U.S. 36 (2004), the United States Supreme Court set out a bright-line test, under which the right of confrontation applies only to (1) witnesses who appear at trial, and (2) hearsay declarants whose out-of-court statements are “testimonial.” The Court has never fully defined the term “testimonial” but, at a minimum, testimonial statements include “formal” statements made for the primary purpose of establishing or proving a past fact for use as evidence. Hearsay statements that were not made with the primary purpose of furnishing evidence, such as statements to friends and family members, statements to jailhouse informants, and government surveillance recordings of statements made by individuals who lacked awareness of the surveillance, have been classified “nontestimonial” in the Court’s dicta or by lower courts applying Crawford’s test. Nontestimonial statements are subject only to any hearsay rules in the relevant jurisdiction. Accordingly, if the hearsay rule is liberalized or abolished in the future, the effect would be to further liberalize the admission of unconfronted nontestimonial statements as evidence of guilt at a criminal trial. This article challenges Crawford’s approach, and cautions against the liberal admission of unconfronted nontestimonial hearsay. At Sir Walter Raleigh’s 1603 trial, when Raleigh complained that common law trials were by witnesses, Judge Warburton reportedly responded, “I marvel, Sir Walter, that you being of such experience and wit, should stand on this point; for many horse-stealers should escape if they may not be condemned without witnesses.” By defining “witness” as only a person who testifies at trial or has made a testimonial statement, Crawford allows a trial that permits the use of nontestimonial hearsay as a substitute for the production of witnesses to the events. Crawford thus in part revives the Seventeenth Century use of unconfronted hearsay, and taken to its extreme, allows convictions without the necessity of live witness testimony. Examination of the history and evolution of the hearsay rule and of the Confrontation Clause demonstrates that Crawford’s rationale lacks support. Crawford’s ill-effects are threefold: (1) Crawford operationally reduces the Confrontation Clause to an imprecise rule of evidence; (2) it ignores the nonepistemic values of the hearsay rule and the Confrontation Clause; and (3) it further weakens the right to confront witnesses, the presumption of innocence and the “beyond a reasonable doubt” standard. Proposals to redefine “testimonial” illustrate that Crawford’s bright-line test will naturally fluctuate based on the assessed importance of convicting guilty defendants as compared to the danger of convicting innocent defendants. The problem with modern Confrontation Clause jurisprudence is not the linkage between the Confrontation Clause and the hearsay rule. Rather, the problem is that the right has been linked with post-ratification hearsay exceptions that are founded upon positivist justifications of courtroom efficiency and government need. Scholars and the Court should reconsider the right from the perspective of the individual whom the right is supposed to protect, rather than from the perspective of the system that seeks to convict him. A better approach to the right would require confrontation of witnesses and hearsay declarants whose statements are offered to prove a fact supporting a finding of guilt of the charged crime, tempered by the use of equitable rules, such as the doctrine of forfeiture by wrongdoing. Restoring the Confrontation Clause requires that the government produce witnesses to testify viva voce, so that confrontation can occur.