Confronting Crawford v. Washington in the Lower Courts icon.pdf E-mail

122 Yale L.J. 782 (2012).

Crawford v. Washington is arguably the most significant criminal procedure decision of the last decade. Critics have argued that the Crawford line is a doctrinal muddle that has led to arbitrary and unpredictable results in the lower courts. I respond to this critique by presenting results from the first large-scale empirical analysis of post-Crawford Confrontation Clause cases in the lower courts. The results show that courts have emphasized two factors—the presence of a state actor and the presence of an injured party—to evaluate whether a statement is testimonial under Crawford. I then argue that, contrary to conventional wisdom, these results are not ambiguous or contradictory but instead consistent with the reasoning of Crawford and the underlying purposes of the Confrontation Clause.