Abstract
Modern Confrontation Clause doctrine permits only unconfronted “out-of-court statements that would have been admissible in a criminal case at the time of the founding.” To operationalize this concept, the Supreme Court identifies “testimonial hearsay” as the Clause’s primary concern. Its opinions regularly dive into the historical record to refine what counts as “testimonial” but ignore that record in defining “hearsay.” This omission cannot last. Cases in the lower courts, and one on the Court’s recent docket, concern testimonial but (arguably) non-hearsay statements. And while confrontation jurisprudence is supposed to be tied to founding-era evidence law, the “hearsay” definition, casually referenced by the Court in its opinions so far, is a modern innovation. In future cases, the Court will have to identify a founding-era hearsay definition or chart an alternate path. Since there was no precise definition of hearsay in 1791, this essay proposes an alternate path: reframing the Clause as prohibiting unconfronted “testimonial statements” (not “testimonial hearsay”). It also suggests that the Court’s insight regarding the unobjectionable nature of non-hearsay can be incorporated into the definition of “testimonial.” The current test for whether a statement is “testimonial” focuses exclusively on the context in which the statement arose. A more robust test would examine both the statement’s context and the subsequent use of that statement at trial. With the proposed addendum, an out-of-court statement would only be “testimonial” if generated in a testimonial context and introduced to prove the declarant’s assertions. This broader inquiry neatly parallels the Sixth Amendment text, identifying circumstances when an out-of-court speaker truly bears witness at trial and thus becomes a “witness against” the accused. And this inquiry eliminates any need to address the often-unanswerable question of whether a statement would have been “hearsay” in 1791.
Recommended Citation
Jeffrey Bellin,
The Needless Search for a Founding-Era "Hearsay" Definition,
57
U. Mich. J. L. Reform
845
(2024).
Available at:
https://repository.law.umich.edu/mjlr/vol57/iss4/9
