Testing the Testimonial Concept and Exceptions to Confrontation: "A Little Child Shall Lead Them"

Robert P. Mosteller, Duke Law School

Document Type Article

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In Crawford v. Washington (2004), the Supreme Court radically transformed the analysis of the Confrontation Clause for hearsay, but left many specific questions unanswered. Two years later in Davis v. Washington (2006), it revisited the subject and answered a few of the unresolved issues, but again left much in doubt, apparently reorienting the focus of the testimonial definition from that of the party making the statement to that of the person receiving it. One of the areas where the new doctrine has greatest potential importance is in cases involving children, particularly cases involving physical and sexual abuse. The importance derives from the fact that hearsay statements to family members, doctors and nurses, forensic investigators, and family members is often critical evidence in the prosecution. Despite the radical change in doctrine, the pattern in the caselaw involving statements by children in the wake of both Crawford and Davis is one largely of continuity in results from those under the discredited analysis of Ohio v. Roberts, which was generally to receive such statements. The one exception is for statements from children to police officers and those closely analogous - where exclusion under Crawford and Davis is now relatively uniform. The most significant development in analysis in recent cases is the focus on the purpose of the questioner, which in many situations simply provides a clearer explanation for an unchanged result. Statements for medical purposes are universally received. This result is buttressed by Davis's questioner-purpose analysis. However, the nontestimonial treatment, while generally appropriate even for statements of identity during the initial medical assessment, should not, despite a medical label, continue for subsequent examinations where the prosecutorial purpose likely predominates.