UC Law Constitutional Quarterly


Jenny M. Kim


The Confrontation Clause of the Sixth Amendment gives a defendant in a criminal prosecution the right to "be confronted with the witnesses against him." The Constitution's text alone does not resolve the meaning of the Confrontation Clause and its application to the admissibility of an unavailable witness' statements. Thus, in determining whether admission of an unavailable witness' tape-recorded statement to a police officer was a Confrontation Clause violation, the Crawford Court looked to the history of the Confrontation Clause from its inception at English common law. The Court determined that the Framers of the Constitution were particularly concerned about the unique potential for prosecutorial abuse.

In Crawford, the Court expressed concern that there was little "meaningful protection" from Confrontation Clause violations under the "indicia of reliability" test articulated in Ohio v. Roberts, 448 U.S. 56 (1980). The Court's two main concerns were that the open-ended Roberts test was unpredictable and that it admitted "core testimonial statements" that the Constitution intended to exclude. Consequently, the Court abrogated Roberts and ruled that, "[w]here testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation." While the Court laid down a clear rule barring the admission of testimonial statements where a witness is unavailable for cross-examination, the Court did not fully define what makes a statement "testimonial."

This article surveys the recent United States Supreme Court and lower court decisions analyzing the distinction between testimonial and nontestimonial statements and advocates adopting bright line rules consistent with the Framers' intent. Adopting bright line rules that comport with the guarantees of the Sixth Amendment would avoid the vices of the prior standard articulated in Roberts.