CRAWFORD & ITS PROGENY IN TEXAS & THE
NATION’S OTHER STATE SUPREME COURTS
This article is designed to track three major conceptual themes. First, the elusive pursuit of scholarship which engages both the practicing bar and academics. Second, how our federalism is shaped by the interaction of the “Supreme Courts”. Finally, identifying metrics upon which to base a principled assessment of whether a United States Supreme Court decision is a “watershed” decision.
The article documents that Crawford and its progeny have created a powerful convergence of the interests of academics and the practicing bar. It does so by making reference to the scope and dimension of the influences on criminal law practice in the state and federal courts caused by Crawford. It does so by referencing the line of law review articles tracking Crawford and its progeny, and the impact and potential impact the decision has had and can have on the teaching of hearsay and its relationship to Confrontation Clause jurisprudence.
The article next tracks how state supreme courts have reacted to the original Crawford decision. It surveys the impact of each sequential Crawford progeny, on the course of confrontation clause jurisprudence in the state supreme courts. It follows with an in-depth evaluation of the impact of the Crawford line of cases on the protections of the confrontation clause as interpreted by the Texas Court of Criminal Appeals.
Finally, in developing the third and find conceptual theses, the article suggest and examines metrics for determining when it is fair to characterize a decision by the U.S. Supreme Court as a “Watershed Decision”. The first metric of “watershed” employed in this study is the magnitude and sustainability of the change in the course of litigation, litigation strategy by prosecutors and the criminal defense lawyers., and the impact on the course of negotiation and the trial outcomes that result from the decision. The second metric of “watershed” employed in this study is the sheer volume and sustainability of important(state supreme courts) appellate litigation citing to and relying on the case as the basis for decision. The third metric of “watershed” employed in this study is assessing the impact of the decision on the academy and pertinent policy analysis.
Crawford’s impact measured by the first metric can be previewed by the fact that the decision’s treatment of “TESTIMONIAL” means that the confrontation clause protection trumps approximately 50 recognized exceptions to the exclusion of evidence based on the hearsay rule. The decision’s impact measured by the second metric is illustrated in this article by documenting that in the first seven years after the decision, over 700 State Supreme Court Decisions cited the case and relied upon it to influence or serve as the basis for their holdings. This impact judged by this second benchmark is further documented when this article places the influence of Crawford on the Texas Court of Criminal Appeals under the microscope. This section illustrates how much Crawford can matter in one jurisdiction, and can serve to demonstrate how that difference can be studied in at least fifty other jurisdictions. Finally, The decision’s impact measured by the third metric is evaluated in this study by documenting the dramatic increase in academic interest in the confrontation clause, its protections, and the underlying potential of the policy implications of Crawford and Its progeny. A related element of this evaluation is the article’s examination of how Crawford has influenced the teaching of evidence, specifically hearsay. The article concludes with a summary of its key findings, and a forecast of “What’s Next” for the influence of Crawford on the evolution of the confrontation clause and the likely reactions of the practicing bar and academia.
- Confrontation Clause,
- National and State Supreme Courts,
Available at: http://works.bepress.com/dannye_holley/5/