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After Crawford Double-Speak: "Testimony" Does Not Mean Testimony and "Witness" Does Not Mean Witness

NCJ Number
Journal of Criminal Law & Criminology Volume: 97 Issue: 1 Dated: Fall 2006 Pages: 147-218
Josephine Ross
Date Published
72 pages
This article considers the circumstances in which out-of-court statements may be used as testimony in a courtroom.
The main argument is that courts should decide whether out-of-court statements constitute testimony by considering whether the declarants functioned as witnesses against the defendant at trial. This approach shifts the timeframe from the production of evidence to the use of the evidence in the courtroom, which creates a rule more in line with the original ruling in Crawford v. Washington. The issue at hand involves the question of whether statements made outside of a courtroom can become courtroom testimony when the declarant is not available for courtroom cross-examination. The author reviews several court cases in which witnesses and victims were not available for courtroom testimony and in which the State attempted to bring action based on statements made at the scenes of the alleged criminal incidents. In the Crawford v. Washington case, the U.S. Supreme Court seemed to recognize the need to end hearsay-based prosecutions but failed to deliver a clear ruling on the matter. The decision in Crawford pulled the issue in two different directions: on the one hand, the decision required accusers to testify in court and on the other hand, the decision limited the scope of the Confrontational Clause to exclude many of the witnesses whose out-of-court accusations formed the proof of criminal wrongdoing. The recent Supreme Court cases, Davis v. Washington and Hammon v. Indiana, are examined for their application of Crawford's Confrontational Clause jurisprudence to domestic violence prosecutions. In these cases, the Court failed to clarify how out-of-court accusations may be handled. The decisions acted to both prevent a large range of hearsay from substituting for live testimony but also allowed for the circumvention of the confrontation requirement in domestic violence cases where out-of-court statements fit the "excited utterance" doctrine. Footnotes