Prosecutors, defense attorneys, and lower court judges hoped that the Supreme Court’s ruling in the consolidated cases of Davis v. Washington and Hammon v. Indiana (hereafter simply Davis) would provide a primer on testimonial hearsay. In retrospect, these hopes were somewhat unrealistic. The Davis ruling could not possibly clear up all the confusion that followed Crawford v. Washington, the landmark 2004 case in which the Court strengthened the right of the accused to confront declarants of testimonial hearsay. In Davis, the Court focused on the facts under review and developed a taxonomy that will be useful in similar cases, but the Court did not attempt to explain all the implications of Crawford. In fact, the Davis ruling raised nearly as many questions as it answered. This Essay will begin by noting some shortcomings of the Davis opinion. I will then highlight what I regard as salutary aspects of this ruling. The next section will list some of the questions that remain unanswered in the wake of Davis. I will conclude by suggesting that the Davis ruling is a step forward—albeit a modest one—for confrontation jurisprudence.
Davis and Hammon: A Step Forward, or a Step Back?,
Mich. L. Rev. First Impressions
Available at: http://repository.law.umich.edu/mlr_fi/vol105/iss1/22