Finding Nino: Justice Scalia's Confrontation Clause Legacy From Its (Glorious) Beginning to (Bitter) End

Joelle Anne Moreno


The Supreme Court's recent dramatic resurrection of the Confrontation Clause has generated a flurry of activity in federal and state courts and among legal scholars. The evolving constitutional doctrine purports to protect a vital trial right and to enshrine core historical concerns. According to Justice Scalia in Crawford v. Washington, "[w]here testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation."

After Crawford, prosecutors could no longer rely on state or federal rules of evidence. Instead, for all statements deemed testimonial by the trial court either the witness must be subjected to cross examination or her statement excluded. The Supreme Court has repeatedly refused to provide clear or consistent criteria distinguishing testimonial statements from the range of out-of-court statements made by victims and witnesses during criminal investigations. Without clear guidance, lower courts have generated confused and inconsistent confrontation clause decisions.