Document Type

Book Chapter

Publication Date



Michael Crawford had been charged with assault. At his trial, the prosecution offered a statement made in the police station on the night of the incident by Crawford's wife Sylvia, who did not testify at trial. He objected, in part on the ground that this violated his right under the Confrontation Clause. The trial court nevertheless admitted the statement, and Crawford was convicted. The Washington Supreme Court ultimately affirmed the judgment. In rejecting the Confrontation Clause challenge, that court purported to apply the then governing doctrine of Ohio v. Roberts, under which the Clause posed no obstacle to admissibility if the statement was deemed sufficiently reliable. And the court concluded that the statement met this standard, in part because it "interlocked" with a statement Michael himself had made to the police the same night. In his petition, Jeff - as I will refer to Fisher, because we have become friends and close working colleagues - argued first that the "interlock" theory was in conflict with decisions of other jurisdictions and was an inappropriate application of Roberts. This part of the petition struck me as very, very good-well argued, precise, and professional. But it was the second part of the petition to which Jeff had referred in his message. There, he urged that the Court take the case so that it could throw out the whole Roberts doctrine. The Court should replace that doctrine, he said, by an approach under which an out-of-court statement that is testimonial in nature cannot be introduced against an accused if he has not had a chance to cross-examine the maker of the statement. As Jeff had indicated in his e-mail, this was the approach I had advocated in my scholarship, and the petition featured generous quotations from my work. Now, as you can imagine, I thought this was a great petition.

Indeed, I began salivating, at least figuratively. In response to amicus briefs in two prior cases, one of which was the Lilly case mentioned by Jeff, three justices had indicated their willingness to rethink the foundations of Confrontation Clause jurisprudence. But amici, friends of the Court, stand on the sidelines. Until a party to a case before the Court urged the Court to discard Roberts, we were probably going to be stuck with it for the foreseeable future. And here was a defendant, represented by an able lawyer, who was asking for just the change I had hoped, adoption of the testimonial approach. But three questions were immediately apparent:

  • Would the Court take the case? Most petitions for certiorari are rejected.
  • If the Court took the case, would it reach the broad issue, or would it simply continue to apply the Roberts framework? The Court usually tries to avoid broad questions if it can decide a case on narrow grounds, and there was no doubt the Court could reverse Michael Crawford's conviction without needing to consider whether it should abandon Roberts.
  • If the Court did reach the broad issue, would it actually adopt the testimonial approach, or would it stick with Roberts? The Court is generally hesitant to make dramatic changes in doctrine, and there was no doubt that rejecting Roberts would be dramatic. And, as in Crawford's case, the Court always could reach a sensible result while staying within the Roberts framework (The Court could reach just about any result within that framework, and that was part of the problem.)

All three questions would be answered in the affirmative over the next year. And so the story of Crawford is much more than the story of Mike and Sylvia Crawford and the knife fight with another man that landed Mike in prison. It is also the story of how the accused's right to be confronted with witnesses developed over the centuries and then atrophied, and of how a young lawyer with talent, gumption, and guts was able to persuade the Supreme Court to restore the right to its proper place at the center of our system of criminal justice. From my point of view as a scholar, it is a story that is enjoyable to tell in part because it is so gratifying.