Confrontation and Hearsay: A Critique of Crawford
| Published date | 01 July 2004 |
| Author | H. L. Ho |
| Date | 01 July 2004 |
| DOI | 10.1350/ijep.8.3.147.40870 |
| Subject Matter | Article |
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF 147
CONFRONTATION AND HEARSAY: A CRITIQUE OF
CRAWFORD
(2004) 8 E&P 147–164
T
Confrontation and
hearsay: a critique of
Crawford
By H. L. Ho*
Faculty of Law, National University of Singapore
Abstract. In the recent case of Crawford v Washington, the United States Supreme
Court took a new interpretation of the right of confrontation, as it is expressed
in the Confrontation Clause of the Sixth Amendment to the United States’
Constitution, and of the relation of that right to the hearsay doctrine. According
to the majority, no ‘testimonial’ statement is admissible as evidence of the fact
stated unless the maker of the statement is unavailable to testify at the trial
and there was a prior opportunity to cross-examine him. This article examines
the reasoning in Crawford, the concept of a ‘testimonial’ statement, and the
application of the decision in subsequent cases. While the ruling in Crawford
purports to be true to the letter and spirit of the Confrontation Clause, there
are grounds to be critical of the reasoning of the majority and of the merits of
the new approach.
he right of confrontation is a deeply rooted legal principle that is widely
considered to be essential to the fairness of a trial. Its importance is
evident in its exaltation as a rule of natural justice,1 and in its
incorporation into national constitutions or bills of rights, statutes of
international tribunals,2 and international and regional conventions,3 including
the European Convention on Human Rights.4 In the United States, the Supreme
* The author is grateful to the editor and referees for their comments.
1 See State v Webb 2 NC 103 at 104 (1794): ‘[I]t is a rule of the common law, founded on natural
justice, that no man shall be prejudiced by evidence which he had not the liberty to cross-
examine.’
2 See R. May and M. Wierda, International Criminal Evidence (Transnational Publishers: New York,
2002) 284–8.
3 For a comprehensive survey, see D. Lusty, ‘Anonymous Accusers: An Historical and Comparative
Analysis of Secret Witnesses in Criminal Trials’ (2002) 24 Sydney Law Review 361.
4 See R. Kirst, ‘Hearsay and the Right of Confrontation in the European Court of Human Rights’
(2003) 21 Quinnipiac Law Review 777; B. Emmerson and A. Ashworth, Human Rights and Criminal
Justice (Sweet and Maxwell: London, 2001) 462–71; Visser v The Netherlands [2002] Crim LR 495,
commentary by A. Ashworth; L. Ellison, ‘The Right of Challenge in Sexual Offence Cases: SN v
Sweden’ (2003) 7 E & P 62.
148 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
CONFRONTATION AND HEARSAY: A CRITIQUE OF
CRAWFORD
Court has recently sought to clarify the relation between the hearsay rule and the
right of confrontation. Given the universality of the core concept, the development
of the right in the United States will be of interest not just to lawyers of that
jurisdiction but also to comparative lawyers elsewhere. This article evaluates the
case on the strength of its reasoning as well as in the light of subsequent decisions.
The ruling, so it will be argued, is ironic at three levels.
Crawford
: history, facts and reasoning
The case in point is Michael D. Crawford v Washington (hereafter Crawford).5 The
defendant stabbed a man in a fight. He claimed to have acted in self-defence
while protecting himself from the victim who was armed. It was in issue whether
the latter was indeed armed when the defendant stabbed him. The defendant’s
wife saw the fight and hence would have been a material trial witness. But the
State could not call her to the witness stand. This was because the defendant had
invoked marital privilege to prevent her from testifying against him.6 The State
was, however, allowed to admit in evidence tape recordings of two statements
that she had made to the police. The second of the statements suggested that the
victim had no weapon in his hands when he was stabbed. It was admitted under
the ‘statement against declarant’s penal interest’7 exception to the hearsay rule
as provided for in the law of the jurisdiction (Washington) where the incident
occurred.8 The defendant was convicted of first degree assault.
The defendant appealed against his conviction on the ground that he had been
denied his right under the Confrontation Clause of the Sixth Amendment to the
United States’ Constitution;9 this is the right ‘to be confronted with the witnesses
against him’. He argued that there was a violation of this right as his wife was
used by the State as a witness against him and he was not confronted with her at
the trial.
A literal reading of the Confrontation Clause would mean that, without the
consent of the defendant, no evidence may be given against him of any statement
made by a person not called as a witness, and would lead to the abrogation of
5 124 S Ct 1354 (2004). R. D. Friedman recently published an article based on the amicus brief filed
before the Supreme Court in Crawford: ‘“Face to Face”: Rediscovering the Right to Confront
Prosecution Witnesses’ (2004) 8 E & P 1.
6 See the unpublished opinion of the Court of Appeals in Washington v Crawford 2001 WL 850119 at
*1 (2001) and the judgment of the Washington Supreme Court, Washington v Crawford 54 P3d 656
at 658 (2002).
7 For analysis of the basis for admission under this exception, see Washington v Crawford 54 P3d
656 at 661–3 (2002).
8 Washington State Court Rules, Rules of Evidence, rule 804(b)(3).
9 Which applies to State prosecutions under the ‘due process’ clause of the Fourteenth Amendment,
as decided by the United States Supreme Court in Pointer v Texas 380 US 400 at 406 (1965).
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