Imagine a world . . . in which the Supreme Court got it right the first time. That is, imagine that when the Supreme Court first incorporated the Confrontation Clause against the states, the Court did so by way of the testimonial approach. It’s not that hard to envision. In Douglas v. Alabama—issued in 1965, on the same day the Court ruled that the Confrontation Clause applies to the states—the Court held that a nontestifying witness’s custodial confession could not be introduced against the defendant because, while “not technically testimony,” the confession was “the equivalent in the jury’s mind of testimony” from the nontestifying witness. From that platform, all the Court would have needed to say in Dutton v. Evans and Ohio v. Roberts was that a statement made seemingly in confidence to a cellmate is not “testimonial” in nature, while statements at a preliminary hearing obviously are (although such statements still are admissible when the defendant had an adequate prior opportunity for cross-examination). Of course, things did not turn out that way. Concerned about the unusual nature of Georgia’s version of the coconspirator hearsay exception at issue in Dutton, the Court tied itself up in knots. Then it announced in Roberts that the Confrontation Clause essentially tracked hearsay law.
Jeffrey L. Fisher,
Crawford v. Washington: The Next Ten Years,
Mich. L. Rev. First Impressions
Available at: https://repository.law.umich.edu/mlr_fi/vol113/iss1/7