Beyond Michigan v. Bryant: A Practicable Approach to Testimonial Hearsay and Ongoing Emergencies

The Confrontation Clause of the Sixth Amendment protects the right of a defendant to confront and cross-examine the witnesses against him or her. When the Supreme Court issued its opinion in Crawford v. Washington in 2004, the Court, for the first time in American legal history, distinguished the Confrontation Clause from the hearsay rule, by recasting it as protecting a procedural, rather than substantive, guarantee. In the 2006 case of Davis v. Washington, the Court narrowed the scope of the Confrontation Clause by taking into account “ongoing emergencies,” and in 2011, the Court, in Michigan v. Bryant, incorporated a “combined inquiry” test in determining the primary purpose of an out-of-court interrogation, to determine whether statements made in such an interrogation were testimonial. The framework for applying the Confrontation Clause, however, is a confusing one, and there are several inherent problems in the combined approach that have yet to be solved.This Note analyzes three major categories of approaches to defining testimony within the current framework for applying the Confrontation Clause: the purpose-based approach, the characteristic-based approach, and the functionalist approach. This Note then argues that each approach is insufficient due to serious problems in concept, application, manipulability, and breadth. Finally, this Note proposes the adoption of a new, practical three-step analysis for determining whether an out-of-court statement is testimonial in nature.

The full text of this Note is available to download as a PDF.