UCLA School of Law

In Crawford v. Washington, the Supreme Court tried again to reformulate the restrictions of the Confrontation Clause of the Sixth Amendment on the admissibility of hearsay evidence offered by prosecutors. Crawford adopted a dual system of analysis, with a more stringent test for an ill-defined class of statements the Court called “testimonial” while leaving other hearsay statements to the permissive standards laid down in Ohio v. Roberts. Justice Scalia’s majority opinion relies upon a conventional version of history to justify its new scheme. This essay argues that the conventional history errs in supposing that the right of confrontation originated in England. The “true history” supports some parts of the Crawford analysis but undermines the Court’s narrow view that conflates confrontation and cross-examination.