Crawford v. Washington: A Ten Year Retrospective

Introduction from the Editors

No one disputes the significance of Crawford v. Washington, 541 U.S. 36 (2004), which fundamentally transformed Confrontation Clause jurisprudence. But ten years after the Supreme Court's landmark decision, scholars, practitioners, and judges still debate its logic and its consequences. This Symposium continues that debate, featuring essays written by Professors Richard D. Friedman and Jeffrey L. Fisher, who advocated in Crawford itself for the Supreme Court to adopt the "testimonial" approach to the Confrontation Clause; Professor George Fisher, one of the nation's premier scholars of criminal law and evidence; and Professor Deborah Tuerkheimer, who has written extensively on the Crawford regime's effect on domestic violence prosecutions.

The Symposium consists of five essays. Professors George Fisher and Tuerkheimer both wrote longer essays, while Professors Friedman and Jeff Fisher each wrote a shorter piece and collaborated on a joint response to George Fisher's essay.

We hope this Symposium fosters further debate about the merits of the Crawford regime and inspires the practitioners, scholars, and judges who will shape the contours of the Confrontation Clause over the next ten years.


Come Back to the Boat, Justice Breyer!

Richard D. Friedman

I want to get Justice Breyer back on the right side of Confrontation Clause issues.

In 1999, in Lilly v. Virginia, he wrote a farsighted concurrence, making him one of the first members of the Supreme Court to recognize the inadequacy of the then-prevailing doctrine of the Confrontation Clause. That doctrine, first announced in Ohio v. Roberts, was dependent on hearsay law and made judicial assessments of reliability determinative. In Crawford v. Washington, the Court was presented with an alternative approach, making the key inquiry whether the statement in question was testimonial in nature. During the oral argument, Justice Breyer seemed to endorse the test I had articulated, in an amicus brief, for what makes a statement testimonial-"[W]ould a reasonable person in the position of declarant anticipate that the statement would likely be used for evidentiary purposes?" Ultimately, he was one of seven members of the Court to support Crawford's dramatic adoption of a testimonial approach. And two years later, in Hammon v. Indiana (decided with Davis v. Washington), Justice Breyer was one of eight justices to treat as testimonial a woman's statement accusing her husband of assaulting her, given that it was made to a police officer in the family living room a considerable time after the alleged event, while another officer held the accused at bay. (I like to think that I argued the case for the accused because I believed this was obviously right, not the other way around.)

But consider what Justice Breyer has done more recently. In 2011, he helped form a majority in Michigan v. Bryant, taking a view far more restrictive than that reflected in Hammon of what is testimonial in the context of a fresh accusation. And three times over the last five years-in Melendez-Diaz v. Massachusetts, Bullcoming v. New Mexico, and Williams v. Illinois-he has joined Chief Justice Roberts and Justices Kennedy and Alito in opinions resisting the proposition that forensic laboratory reports are ordinarily testimonial. Each of these opinions gives off a strong sense of buyer's remorse, arising at least in large part from fear of undue burdens on the criminal justice system; the opinions seem to be looking around for any theory, however strained, that would substantially limit Crawford. Each has fallen just one vote short of gaining a majority of the Court, but in Williams-thanks to Justice Thomas, who (as in Hammon) takes an idiosyncratically formalistic view of what statements are formal enough to be deemed testimonial-the four justices became a plurality. Williams has, as predicted by Justice Kagan in a sparkling dissent, sown considerable confusion in the lower courts.

What happened?  At least in part, I think the answer is simple: Giles v. California. At the argument in Giles, Justice Breyer noted that he had joined in Crawford, but he then added that he was "rapidly leaving" "the boat." And so it has been: since Giles, in every divided case, Justice Breyer has been on the side that would limit the confrontation right.


Crawford v. Washington: The Next Ten Years

Jeffrey L. Fisher

The Crawford Debacle

George Fisher

Confrontation and the Re-Privatization of Domestic Violence

Deborah Tuerkheimer

The Frame of Reference and Other Problems

Richard D. Friedman & Jeffrey L. Fisher