Abstract
This essay reflects on whether Crawford v. Washington, now in its third decade of life, matters to criminal justice. For all the talk of Crawford as “revolutionary,” that is, has it made any real difference to the world of crime and punishment? I’ve confronted the question before. In a 2021 essay, I argued that Crawford probably has modest real-world effects. Crawford articulated a right that criminal defendants can exercise only at trial. In an adjudicatory system bereft of trials, trial rights don’t count for much. They impact plea outcomes only when they confer bargaining power sufficient to offset prosecutors’ prodigious leverage. The post-Crawford confrontation right might do that occasionally, I contended, but it’s unlikely that it does so generally. In this essay, I revise and extend those remarks. I extend them by elaborating on my view of Crawford’s practical consequences. I revise them by recognizing that Supreme Court decisions can matter in other ways. Crawford matters to criminal justice because the Court radically departed from the jurisprudential framework that’s dominated its criminal adjudication work for generations, which centers the imperative of swiftly processing cases through America’s courts. To be sure, system maintenance isn’t the official logic of constitutional criminal procedure. For the public and parts of the legal profession, the Court touts an adjudicative process that’s careful and deliberate. But for criminal justice professionals, it endorses doctrinal workarounds of constitutional rights that it worries are too inconvenient. Even if the workarounds aren’t exactly the procedures touted in law-day celebrations, they are, in the Court’s eyes, close enough. But not in Crawford. In Crawford, the Court embraced inconvenient proceduralism in criminal adjudication. Crawford’s legacy in the criminal procedure realm (as distinct from its contributions to constitutional theory or evidence) lies in its proof of concept for a jurisprudence that treats the rights of the accused as meaningful constraints rather than as nuisances to elude. Crawford may not affect the resolution of many criminal cases, but it provides conceptual grounding for changes that would. This essay proceeds in three parts. Part I further explains why Crawford probably does not directly or indirectly impact outcomes in all that many criminal cases. Part II contrasts Crawford with the Court’s usual approach to criminal adjudication cases, which I label the “jurisprudence of close enough.” Finally, Part III considers the value and appeal of Crawford’s stand for inconvenience in criminal adjudication.
Recommended Citation
William Ortman,
Crawford and Criminal Justice,
57
U. Mich. J. L. Reform
765
(2024).
Available at:
https://repository.law.umich.edu/mjlr/vol57/iss4/5
