Document Type

Article

Publication Date

2012

Abstract

Cases since Crawford have mainly fallen into two categories. One involves accusations of crime, made by the apparent victim shortly after the incident. In Michigan v. Bryant, a majority of the Court adopted an unfortunately constricted view of the word "testimonial" in this context. That decision was a consequence of the Court having failed to adopt a robust view of when an accused forfeits the confrontation right. How the Court will deal with this situation-one mistake made in an attempt to compensate for another-is a perplexing and important question. This Essay, though, concentrates on the other principal category of post-Crawford cases, involving forensic laboratory reports. In this context, the Supreme Court has, thus far at least, come to what I believe is the proper result, recognizing that such reports, prepared for use in investigation and prosecution of crime, are testimonial for purposes of the Confrontation Clause. But in the most significant cases, the Court has reached this result over the strenuous dissent of four justices, and over the objections of most of the states.