Crawford v. Washington and the U.S. Response

In 2004, the Supreme Court of the United States handed down the decision in Crawford v. Washington which turned the rules of evidence upside down. Crawford overruled and rejected the long-standing rule of Ohio v. Roberts, which focused on established hearsay exceptions and essentially required judges to assess the reliability of evidence before determining whether it could be used at trial. The new Crawford rule says the Right of Confrontation guaranteed by the Confrontation Clause in the Sixth Amendment to the United States Constitution prevents testimonial evidence, such as affidavits, from being used at trial unless (1) the witness is present at the trial and subject to cross-examination or (2) the witness is unavailable and the accused had a prior opportunity to cross-examine the witness. Essentially, the Roberts rule had the judge assessing reliability of evidence to decide if it would be admitted at trial, but the Crawford rule says evidence will not be used at trial unless the witness is present so reliability can be tested by cross-examination.

Following Crawford, courts in many states, including Virginia, seemed to engage in what many legal analysts characterized as creative reasoning, perhaps even result-oriented reasoning, in order to side-step the Crawford rule. Since Crawford only applied to "testimonial evidence", some Virginia courts came up with strained definitions of "testimonial evidence" to avoid the application of Crawford. Other Virginia courts seemed to ignore the fundamental obligation of the government to produce witnesses and evidence at trial to prove the elements of the crime charged, and ruled that the use of affidavits at trial did not amount to a Confrontation Clause violation because the accused could have subpoenaed the prosecution's witnesses if the accused wanted to cross-examine them. Yes, you read that right and I am not making this up. Perhaps most offensive is the acknowledgment by Virginia courts that they are compromising right of the accused to confront witnesses against him in favor of keeping the prosecution of cases less burdensome in order to have a more efficient system.

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