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Unpublished Paper
Confronting the “Ongoing Emergency”: A Pragmatic Approach to Hearsay Evidence in the Context of the Sixth Amendment
ExpressO (2007)
  • Ellen Liang Yee
The Supreme Court’s path breaking decision in Crawford v. Washington, 541 U.S 36 (2004), held that admission of an extrajudicial testimonial statement by an unavailable declarant-witness violates the Confrontation Clause unless the defendant has an opportunity to cross-examine the declarant. Unfortunately, the determination of admissibility for the trial court judge has not been simplified after Crawford. The role of the trial court judge has now shifted from determining the reliability of the hearsay evidence (as was required before Crawford) to a determination of the testimonial nature of the declarant’s statement. However, with some small exceptions, the Court in Crawford explicitly decided that it would “leave for another day” a more specific definition of the term “testimonial,” which would have helped to clarify how to address admissibility issues in many cases. This testimonial thicket presents a difficult set of issues for lower court judges making admissibility determinations where there is a relationship between an unavailable witness-declarant and a criminal defendant. The relationship between a criminal defendant and a witness-declarant is often nuanced and complex, making trial appearance of the declarant problematic. For example, in cases where the declarant-witness is a victim of domestic violence or child abuse, courts face some of the most difficult issues in determining which hearsay statements implicate the Confrontation Clause. Davis v. Washington, 126 S.Ct. 2266 (2006), provided an opportunity to address this issue in the context of two separately appealed domestic violence cases. To its credit, in Davis, the Court partially cleared the Crawford path by providing more guidance on which “police interrogations” may produce “testimonial” statements. However, the Court’s approach in Davis fails to provide a comprehensive set of considerations for lower courts in addressing relationships that make it problematic for the witness-declarant to testify at trial. For example, the Court has provided incomplete guidance for determining when an “ongoing emergency” is present – an important predicate inquiry to an admissibility determination where there is a relationship between a witness-declarant and a criminal defendant. Drawing from and extending the Court’s approach in Davis, this Article suggests a method of analysis which implements the framework of Crawford within the broader institutional goals of the criminal justice system. Specifically, by providing an analytical approach to aid courts in defining an “ongoing emergency” in the context of problematic relationships, the Article gives lower courts some much-needed guidance to assist in addressing the admissibility of statements by witness-declarants who may be unavailable to testify.
  • confrontation clause,
  • hearsay
Publication Date
September, 2007
Citation Information
Ellen Liang Yee. "Confronting the “Ongoing Emergency”: A Pragmatic Approach to Hearsay Evidence in the Context of the Sixth Amendment" ExpressO (2007)
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