Crawford V. Washington - Effect of The Decision

Effect of The Decision

This decision had an immediate, profound effect upon the ability of prosecutors to prove their cases through the use of evidence that had previously been admissible via various exceptions to the hearsay rule. Justice Scalia's opinion explicitly states that any out-of-court statement that is "testimonial" in nature is not admissible, unless the declarant is unavailable to testify in court, and the defendant has had a prior opportunity to cross-examine him or her. However, the opinion does not define "testimonial", which has allowed courts across the country to determine that issue for themselves.

Legal scholars' main criticism of the decision was its failure to define "testimonial". One of the main areas in which lower courts struggled to resolve this issue was the use of 911 calls during the course of trial where the caller is not available to testify. This was the factual situation in Davis v. Washington, in which the Court laid out a definition of "testimonial." Other cases have dealt with the issue of the previously common practice of admitting certain types of certified documents under the business records or public records exception to the hearsay rule.

Crawford, and the decisions following it, also radically changed the handling of domestic violence cases by curtailing evidence-based prosecution, a common practice allowing the accused to be prosecuted without the participation of their accusers in the criminal court process. Evidence-based prosecution relies heavily on admission of statements under hearsay exceptions to reproduce the evidentiary effect of a victim testifying in court. The Crawford Court's decision renders most of these statements inadmissible without the accuser coming to court and testifying against the person he is accusing.