Dissent in Crawford v. Washington
541 U.S. 36 (2004) (2004) · Supreme Court of the United States
Crawford revolutionized Confrontation Clause jurisprudence by holding that the Sixth Amendment bars the admission of testimonial hearsay unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine. The decision overruled Ohio v. Roberts and its reliability-based framework, returning to the original meaning of the Confrontation Clause as understood by the Framers.
What was the dissent in Crawford v. Washington?
Chief Justice Rehnquist, joined by Justice O'Connor, concurred in the judgment but objected to overruling Roberts. He argued that the Roberts framework was workable and that the majority's testimonial approach would create significant uncertainty about what constitutes a 'testimonial' statement.
Case Overview
Facts
Michael Crawford stabbed Kenneth Lee, who allegedly tried to rape Crawford's wife Sylvia. At trial, the State sought to introduce a tape-recorded statement Sylvia had given to police during a station-house interrogation. Sylvia's statement was inconsistent with Michael's claim of self-defense because she did not clearly describe Lee as having a weapon. Because Washington's marital privilege prevented Sylvia from testifying, the prosecution introduced her recorded statement under the hearsay exception for statements against penal interest.
Majority 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.
Majority Reasoning
Justice Scalia, writing for the majority, conducted an extensive historical analysis of the Confrontation Clause, tracing it to the common law right of confrontation and the abuses of the Crown's use of ex parte examinations, particularly the trial of Sir Walter Raleigh. The Court concluded that the Framers intended the Confrontation Clause to prohibit the specific evil of admitting testimonial statements without cross-examination. The Roberts reliability framework was criticized as unpredictable and subjective, providing insufficient protection for defendants. The Court deliberately left the precise definition of 'testimonial' for future cases but indicated it includes at minimum prior testimony, police interrogations, and formal statements made to government officers.
The Dissenting Opinion
Chief Justice Rehnquist, joined by Justice O'Connor, concurred in the judgment but objected to overruling Roberts. He argued that the Roberts framework was workable and that the majority's testimonial approach would create significant uncertainty about what constitutes a 'testimonial' statement.
Key Quotes
“Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.”
“Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty.”
“The Clause's ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.”
Impact and Legacy
Crawford fundamentally reshaped confrontation law and generated an enormous body of litigation over the meaning of 'testimonial.' The decision spurred companion cases including Davis v. Washington and Michigan v. Bryant, which refined the testimonial/nontestimonial distinction. It significantly limited prosecutors' ability to use hearsay from unavailable witnesses, particularly in domestic violence and child abuse cases.
Exam Relevance
Crawford is one of the most frequently tested Evidence cases. Exam questions typically present a hearsay statement and ask whether admitting it would violate the Confrontation Clause. Students must analyze whether the statement is testimonial, whether the declarant is unavailable, and whether the defendant had a prior opportunity for cross-examination. The interplay between Crawford and Davis is a common exam topic.
Study Tips
- Master the testimonial vs. nontestimonial distinction -- this is the critical threshold question after Crawford.
- Know that Crawford overruled the Roberts reliability test and understand why the Court rejected a reliability-based approach.
- Study Crawford alongside Davis v. Washington to understand the primary purpose test for police interrogation statements.
- Be prepared to discuss how Crawford affects domestic violence prosecutions where victims recant or refuse to testify.
Read the Full Case Analysis
View the complete brief for Crawford v. Washington including full reasoning, doctrine, and study resources.
More Evidence Dissents
Daubert v. Merrell Dow Pharmaceuticals, Inc.
509 U.S. 579 (1993) (1993)
Chief Justice Rehnquist, joined by Justice Stevens, concurred in part and dissented in part. He agreed that Frye was superseded but criticized the majority for going beyond the question presented and issuing abstract guidelines. He expressed concern that the majority's factors were vague and would prove difficult for trial judges to apply in practice.
Davis v. Washington
547 U.S. 813 (2006) (2006)
Justice Thomas concurred in the judgment in Davis but dissented in Hammon, arguing that the primary purpose test was too broad and that only statements involving a degree of formality and solemnity -- such as affidavits, depositions, and prior testimony -- should be considered testimonial.
Ohio v. Roberts
448 U.S. 56 (1980) (1980)
Justice Brennan, joined by Justice Marshall, dissented, arguing that the prosecution had not made a sufficient showing of unavailability. They contended the prosecution's efforts to locate Isaacs were inadequate, failing to check with her employer, school, or other contacts beyond her parents.
Bruton v. United States
391 U.S. 123 (1968) (1968)
Justice White, joined by Justice Harlan, dissented, arguing that the majority underestimated the jury's ability to follow limiting instructions and that the decision would create practical problems for joint trials. He proposed that redaction of the confession to remove the defendant's name would provide adequate protection.
Tome v. United States
513 U.S. 150 (1995) (1995)
Justice Breyer, joined by Chief Justice Rehnquist and Justices O'Connor and Thomas, dissented. He argued that the text of Rule 801(d)(1)(B) does not impose a premotive requirement and that the rule should be read to permit the admission of any prior consistent statement that is relevant to rebut a charge of fabrication, regardless of when it was made.
Old Chief v. United States
519 U.S. 172 (1997) (1997)
Justice O'Connor, joined by Chief Justice Rehnquist and Justices Scalia and Thomas, dissented, arguing that the prosecution has the right to present its case with the richness and power of evidence that allows jurors to make the case their own. She contended the majority's approach improperly interfered with prosecutorial discretion and would create a slippery slope of defendant-forced stipulations.