Crawford v. Washington: What Would Justice Thomas Do?

In Crawford v. Washington, the Supreme Court overruled the Ohio v. Roberts “reliability” test for the admission of hearsay statements as against a Confrontation Clause objection in criminal cases. The Court did so in part on the basis that the Roberts test was inherently unpredictable. The Court replaced the Roberts test with a case-by-case analysis of whether the relevant hearsay statements are “testimonial.” But is the Crawford test that the Court articulated more predictable? This essay suggests that it is not, and compares the Court’s analysis with the proposed definition of testimonial hearsay offered by Justice Thomas.

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