Abstract
I had the privilege of getting to see the creation of the Crawford v. Washington revolution up close. Less than two months after I argued my first case before the Court, it granted Jeffrey Fisher’s petition for writ of certiorari in Crawford. Richard Friedman, who had taught me Evidence when I was a student at Michigan a decade earlier and who is rightfully credited as the intellectual architect of the Crawford revolution, asked me in the fall of 2003 to help moot Jeff, who was also a Michigan alumnus. I went to Washington to hang out with Jeff and Rich (who authored an amicus brief and second-chaired Jeff) and watch the argument. I celebrated with Jeff and Rich the big victory in Crawford, in which the Court held that the Confrontation Clause guaranteed a criminal defendant the right to cross-examine witnesses who made “testimonial” statements that the prosecution wished to introduce at trial. I went back with Jeff and Rich two terms later, to sit with them at counsel’s table and watch them argue the consolidated cases of Hammon v. Indiana (Rich) and Davis v. Washington (Jeff), which helped flesh out the definition of a “testimonial” statement. But I write this short article not to express how cool it was to see the Court overturn decades of precedent and revive the Confrontation Clause right of a defendant to, well, actually confront the witnesses against them instead of allowing the prosecution to introduce out-of-court testimonial statements to prove guilt, even if those statements would be admissible under modern hearsay doctrine. Instead, I write to point out the unsurprising fact that, twenty years later, the Crawford revolution is not quite complete.
Recommended Citation
David A. Moran,
"Yes, You're About to Meet Your Maker, but Did You Really See That Guy?": The Common Law and the Crawford Dying Declaration Exception,
57
U. Mich. J. L. Reform
839
(2024).
Available at:
https://repository.law.umich.edu/mjlr/vol57/iss4/8
