Crawford v. Washington vs. Ohio v. Roberts
A side-by-side comparison of two landmark evidence cases
Crawford v. Washington
541 U.S. 36 (2004) (2004)
Holding
The Court held that the Confrontation Clause bars the admission of testimonial statements of a witness who does not appear at trial unless the witness is unavailable and the defendant had a prior opportunity for cross-examination. The reliability-based approach of Ohio v. Roberts was overruled as inconsistent with the text and original meaning of the Confrontation Clause.
Doctrine Established
Testimonial Hearsay Doctrine under the Confrontation Clause
Ohio v. Roberts
448 U.S. 56 (1980) (1980)
Holding
The Court held that the Confrontation Clause requires a two-part inquiry: first, the prosecution must demonstrate the unavailability of the declarant or show that the statement falls within a firmly rooted hearsay exception; second, the statement must bear adequate indicia of reliability. Reliability can be inferred when the statement falls within a firmly rooted hearsay exception; otherwise, the statement must possess particularized guarantees of trustworthiness. The preliminary hearing testimony satisfied these requirements because Isaacs was unavailable and the defense had an adequate opportunity to cross-examine her.
Doctrine Established
Reliability-Based Confrontation Clause Framework
Comparison Analysis
Crawford v. Washington (2004) and Ohio v. Roberts (1980) represent a fundamental shift in Confrontation Clause jurisprudence. Roberts established a reliability-based framework for the Confrontation Clause, holding that out-of-court statements by unavailable witnesses were admissible if they bore 'adequate indicia of reliability,' which could be established either by falling within a firmly rooted hearsay exception or by a particularized showing of trustworthiness. Crawford overruled Roberts and held that the Confrontation Clause bars the admission of 'testimonial' out-of-court statements unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant.
The shift from Roberts to Crawford was driven by Justice Scalia's originalist analysis of the Sixth Amendment's Confrontation Clause. Scalia argued that the Framers intended the Confrontation Clause to prohibit the use of ex parte testimony against criminal defendants -- specifically, the kind of government-prepared witness statements that were used in the notorious English treason trials that motivated the Sixth Amendment. Roberts' reliability test failed this purpose because it allowed judges to determine that statements were reliable enough to dispense with cross-examination, effectively substituting judicial assessment for the defendant's right to confront witnesses.
The critical analytical issue after Crawford is defining what constitutes a 'testimonial' statement. Crawford identified clear examples (prior testimony, affidavits, police interrogations) but left the precise definition for future cases. Davis v. Washington (2006) later clarified that statements made during ongoing emergencies to police are non-testimonial (and governed by the evidence rules, not the Confrontation Clause), while statements made primarily to establish facts for later prosecution are testimonial. Students must understand that Crawford applies only to testimonial hearsay in criminal cases -- non-testimonial hearsay and hearsay in civil cases are governed by the evidence rules without Confrontation Clause overlay.
Similarities
- Both interpret the Sixth Amendment Confrontation Clause and its application to out-of-court statements offered against criminal defendants
- Both address the fundamental question of when the prosecution may use hearsay evidence against a defendant without producing the declarant for cross-examination
- Both involve domestic violence situations where the prosecution sought to use the victim's prior statements because the victim did not testify at trial
- Both recognize that some hearsay is so problematic that the Constitution limits its use even when evidence rules would otherwise permit it
Differences
- Roberts applied a reliability-based test (adequate indicia of reliability), while Crawford applies a categorical testimonial/non-testimonial distinction
- Under Roberts, judges could admit unreliable hearsay if they personally found it trustworthy; under Crawford, no amount of judicial reliability assessment can substitute for the right to cross-examine testimonial declarants
- Crawford is grounded in originalist analysis of the Sixth Amendment's text and history, while Roberts was grounded in a functionalist assessment of reliability
- Roberts allowed judges significant discretion in admitting hearsay, while Crawford creates a firm rule: testimonial hearsay requires unavailability plus prior opportunity for cross-examination, period
- Crawford applies only to 'testimonial' statements, requiring courts to determine what is testimonial; Roberts applied to all hearsay offered against criminal defendants
Why This Comparison Matters
Confrontation Clause questions are among the most important Evidence exam topics, especially in combined Evidence/Criminal Procedure courses. The key analytical steps are: (1) Is the statement being offered in a criminal case against the defendant? (If not, the Confrontation Clause does not apply.) (2) Is the statement 'testimonial'? (Apply Crawford's definition and the Davis v. Washington framework for police interrogations.) (3) If testimonial, is the declarant unavailable and did the defendant have a prior opportunity to cross-examine? (If both, the statement is admissible; if not, it is barred by the Confrontation Clause regardless of any hearsay exception.) Students must be precise about the testimonial inquiry -- it is the threshold question that determines whether Crawford or the ordinary evidence rules apply.
More Evidence Comparisons
Daubert v. Merrell Dow Pharmaceuticals, Inc. vs. Frye v. United States
Daubert v. Merrell Dow Pharmaceuticals (1993) and Frye v. United States (1923) represent the two competing standards for the admissibility of expert scientific testimony in American courts. Frye established the 'general acceptance' test, holding that expert testimony based on a scientific technique is admissible only if the technique has gained general acceptance in the relevant scientific community. Daubert replaced Frye in federal courts, holding that the Federal Rules of Evidence superseded the general acceptance test and establishing a multi-factor reliability analysis for expert testimony under Rule 702.
Trammel v. United States vs. Upjohn Co. v. United States
Trammel v. United States (1980) and Upjohn Co. v. United States (1981) are both landmark privilege cases, but they address different privileges and serve different policy goals. Trammel reformed the spousal testimonial privilege, holding that only the witness-spouse (not the party-spouse) has the right to invoke the privilege against testifying about the other spouse's criminal conduct. This effectively gave prosecutors the ability to convince a willing spouse to testify against a criminal defendant. Upjohn addressed the attorney-client privilege in the corporate context, holding that the privilege protects communications between corporate counsel and lower-level employees (not just the 'control group' of senior executives), when the communications concern matters within the scope of the employees' duties and are made for the purpose of obtaining legal advice.
Old Chief v. United States vs. Huddleston v. United States
Old Chief v. United States (1997) and Huddleston v. United States (1988) both address the admissibility of evidence under Rule 404(b) and Rule 403 -- the rules governing other-act evidence and the prejudice-probative value balance -- but they reach different conclusions about when such evidence should be excluded. Old Chief held that when the existence of a prior felony conviction is an element of a felon-in-possession charge and the defendant offers to stipulate to the prior conviction, the trial court abuses its discretion by admitting the full record of the prior conviction because the inflammatory details of the prior crime create unfair prejudice that substantially outweighs the probative value when the stipulation equally proves the element. Huddleston held that the standard for admitting other-act evidence under Rule 404(b) requires only that the evidence be sufficient for a reasonable jury to find the prior act occurred by a preponderance of the evidence -- no preliminary finding by the judge is required.
Mutual Life Insurance Co. v. Hillmon vs. Tome v. United States
Mutual Life Insurance Co. v. Hillmon (1892) and Tome v. United States (1995) both address hearsay exceptions for statements revealing a declarant's state of mind, but they apply the doctrine in different contexts and illustrate both the power and the limits of the state-of-mind exception. Hillmon established that statements of a declarant's then-existing intent to do a future act are admissible under the state-of-mind exception (now Rule 803(3)) to prove that the declarant actually carried out the intended act. Specifically, Walters' letters stating he intended to travel to Crooked Creek with Hillmon were admissible to prove he actually went there. Tome addressed the prior consistent statement rule under Rule 801(d)(1)(B), holding that prior consistent statements are admissible to rebut a charge of recent fabrication only if the statement was made before the alleged motive to fabricate arose.