In response to an article previously published in the Florida Law Review by Professor Ben Trachtenberg, I argue that the historical thesis of Crawford v. Washington is basically correct: The Confrontation Clause of the Sixth Amendment reflects a principle about how witnesses should give testimony, and it does not create any broader constraint on the use of hearsay. I argue that this is an appropriate limit on the Clause, and that in fact for the most part there is no good reason to exclude nontestimonial hearsay if live testimony by the declarant to the same proposition would be admissible. I further suggest that the prevailing law of evidence is consistent with this approach to a significant degree, because the doctrine is much more receptive to nontestimonial hearsay than to testimonial hearsay. In contrast to Professor Trachtenberg, I am not troubled by the fact that this approach would probably not block admissibility of one of the notable statements in the trial of Walter Raleigh, or by the fact that the approach supports the willingness of some courts to admit evidence of statements made in support of lawful joint ventures. I conclude by offering some suggestions as to how hearsay doctrine might be transformed to reflect the principles advocated in this Essay.
Friedman, Richard D. "The Mold That Shapes Hearsay Law." Fla. L. Rev. 66, no. 1 (2014): 433-66.