Crawford v. Washington changed the focus of Confrontation Clause jurisprudence. Before Crawford, hearsay could be admitted against a criminal defendant if the declarant was unavailable and the statement bore sufficient indicia of reliability. After Crawford, the central focus is no longer on a statement’s reliability, but on whether the statement was “testimonial” in nature. Although the Court did not define the word “testimonial,” the author teases out three possible definitions of “testimonial” from the Court’s opinion in Crawford. In light of the dual function of 911 calls, and the peculiar phenomenon of domestic violence, the author suggests that five factors are relevant to whether any statement made during the course of a 911 call reporting an incident of domestic violence is “testimonial.” The author proposes that courts use these five factors on a case-by-case basis to determine whether such statements are testimonial.
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