In 2004, Crawford v. Washington resurrected the Confrontation Clause by severing its long-standing ties to "firmly rooted" hearsay exceptions and all other indicia of evidentiary reliability.87 As discussed below, Crawford precipitated a more robust Confrontation Clause, although recent decisions suggest a retreat from these constitutional protections. Crawford involved the admission of a tape-recorded out-of-court statement obtained from the defendant's wife, Sylvia Crawford, who was a witness to the charged crime.88 Mrs. Crawford made a statement to the police during a stationhouse custodial interrogation after receiving Miranda warnings and waiving her rights.89 At trial, she invoked the state marital privilege and did not testify. The prosecutor introduced her out-of-court statement (which undermined her husband's self-defense claim by suggesting that the victim had been unarmed) under the firmly rooted state hearsay exception for statements against interest.90
The Crawford Court firmly rejected the Ohio v. Roberts rule that had permitted judges to substitute their own ad hoc determinations of evidentiary reliability for the "crucible of cross-examination."91 This long-standing criminal practice now bore the full brunt of Justice Scalia's estimable ire. Writing for a unanimous Court, Justice Scalia opined that "[d]ispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty."92 In the Court's view, "the Clause's ultimate goal is to ensure reliability of evidence, . . . [which] is a procedural rather than a substantive guarantee."93 The Sixth Amendment "commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination."94 Proper adherence to the Confrontation Clause permits the admission of statements from "witnesses against the accused" only when the defendant has an opportunity to cross-examine the witness.
The Crawford Court supported its conclusion with an analysis of the text and history of the Confrontation Clause.
The Court began its textual analysis by looking up "witnesses against the accused" in an 1828 edition of Webster's American Dictionary of the English Language.95 Webster's defined a witness as one who "bears testimony" and defined "testimony" as "a solemn declaration or affirmation made for the purpose of establishing or proving some fact."96 Thus, Justice Scalia reasoned that the Framers could not have intended to refer only to those who actually testify in court, nor could they have intended to include all out-of-court declarants.97 "Witnesses" must, therefore, include those who testify in courtrooms, but must also include those who testify outside courtrooms by making "testimonial statements." As the post-Crawford cases reveal, this second group of witnesses has proved increasingly difficult for courts to define and identify.98
The Crawford Court's historical analysis involved a lengthy disquisition of the treason trial of Sir Walter Raleigh, along with other materials.99 According to Justice Scalia, the history of confrontation demonstrated that "the principal evil at which the confrontation clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte communications as evidence against the accused."100 The Court reasoned that "the Framers would not have allowed the admission of testimonial statements of a witness who did not appear at...
