This Essay examines the important ancillary doctrines that need to be developed in the wake of Crawford v. Washington (2004) and the "testimonial statement" approach to Confrontation Clause analysis to ensure that when confrontation is provided it in fact satisfies the requirements of the Clause. More than just some opportunity to cross-examine is required. The witness must be asked to make a public accusation in his or her direct testimony rather than simply being made available for questioning by defense counsel. A public accusation in not simply an after-thought of the right; rather, both it and cross-examination are central components. Whether confrontation occurs in the present proceeding or a prior one, a public accusation is required at one point in the case. When the witness is unavailable at trial and confrontation is satisfied by what occurred in the prior proceeding, the government must likewise present the accuser for the opportunity for cross-examination at that proceeding to be sufficient. In addition, the government must put something at risk, and the hearing must have consequences. To claim the defendant has been confronted by providing an opportunity for cross-examination which will likely only harm the defendant by allowing otherwise inadmissible incriminating evidence to be admitted at trial is inadequate to satisfy the Confrontation Clause.
Robert P. Mosteller, Crawford’s Impact on Hearsay Statements in Domestic Violence and Child Sexual Abuse Cases, 71 Brooklyn Law Review 411-427 (2005)