Sample Law Essay Paper on Crawford Vs Washington

1. Name the objective of the "Confrontation Clause", according to the Supreme Court of
the United States
According to the Supreme Court, the sixth amendment clause is meant to address the issue of
admitting hearsay testimony into evidence. It was designed to stop ex-parte testimony from
being admitted as evidence against a defendant. Such evidence constitutes testimonial hearsay, a
class that encompasses interrogations by police and other law enforcement officers. It must
therefore not be adduced in court. Previously, ex-parte testimony was allowed into evidence by
the Crown using the Marian statutes, effectively abusing the inherent rights of an accused person.
According to the Supreme Court, the Sixth Amendment has to be interpreted with this in
contemplation. 1 As such, the Supreme Court held that the only indicium of reliability that
sufficiently satisfies the constitutional requirement where testimonial statements are at issue is
confrontation. 2 The Supreme Court precluded the idea that the clause should be applied only to
in-court testimony, stating that such a decision would render the clause useless in preventing
flagrant inquisitorial practices. 3
It should however be noted that the Confrontation Clause only applies to witnesses presented
against a defendant. The court observed that while other types of evidence such as an overhead
statement might fall within the hearsay rule, they do not necessarily invoke the Sixth
Amendment. In qualifying interrogation testimony within the types of evidence contemplated
under the clause, the Supreme Court relied on previous hearings which classified equivalents of
in-court testimony as falling within its reach. In White v. Illinois, the court went as far as holding
1 Crawford v. Washington, 541 U. S. 36 (2004)
2 Ibid, Pp.36
3 Ibid, Pp.51

that statements made under circumstances leading an objective witness to contemplate them as
being available for use at a later trial fell within the types of evidence contemplated by the
Confrontation Clause. 4 The fact that the person conducting the interrogation in this case was a
police officer and not a judge was held to be irrelevant. The court affirmed that despite the Sixth
Amendment not being restricted to testimonial hearsay, it is its primary focus.
2. Name the two principles that the history of the Confrontation Clause holds
The Confrontation Clause holds two principles historically; that the civil-law mode of
evidentiary law should not be applied to criminal procedure and, that testimonial evidence from
an absent witness at trial was inadmissible unless the witness was unavailable to give evidence
and the defendant was given a prior opportunity to cross-examine. All this was meant to exclude
hearsay from evidence.
The first principle, as discussed above, was designed to redress the application of civil-law
processes and principles to criminal procedures. Historically, the Crown applied civil law
principles to criminal trials in the 16 th Century through the operation of laws enacted by Queen
Mary. Although allowed at the time, such permissions went contrary to the nature of criminal
trials. The right to cross-examine a person’s accusers is inherent in criminal law. Citing Coy v.
Iowa, the Supreme Court reiterated that this doctrine had been upheld in multiple landmark
cases. Where an accused had a previous occasion to interrogate the testimony, the confrontation
principle was held to have been met as per King v. Paine.
The second principle required that for testimonial evidence to be admissible the witness must be
unavailable for questioning and the defendant must have been given an earlier occasion to

4 White v. Illinois, 502 U. S. 346, 365 (1992)

question the witness. This requirement, as the Supreme Court held, was not open ended in its
adoption and thus does not require the court to open-endedly develop exceptions. 5 On the
contrary; the Confrontation clause avers to the right to confrontation as was at common law, only
subject to pre-established exceptions laid down at the time it was founded. The confrontation
clause was therefore held to incorporate only those two exceptions permitted under the primary
3. Name the circumstances in which the testimony of a witness who is not available at the
trial would be admissible in the Court
The testimony of an absentee witness at the trial would be admissible if the evidence bore
satisfactory indicia of reliability. This is the exception to the clause under the Sixth Amendment.
To determine whether said testimonial evidence meets this threshold, the following tests are
 Is the evidence contained in a firmly rooted hearsay exception? This exception works to the
effect that if the court has no reason to doubt a witness’s statement, it will admit it into
evidence. This, as Goldman notes, may however not take into account certain factors that
may render it untrustworthy; demonstrated in Shepard v. United States. 6
 Does the evidence bear particularized guarantees of trustworthiness? If the statement is so
closely identical to statements provided by the accused person or other witnesses as to be
considered “interlocked” with such statements, it may be admitted into evidence. The State
Court of Appeal however noted that this test should be considered carefully as mere

5 Supra note 1, Pp.54
6 Stanley A. Goldman, ‘Not So Firmly Rooted: Exceptions to the Confrontation Clause’ (North Carolina Law Review,
1987) Pp.2

resemblance does not equate to reliability, especially where the facts in contention do not
form part of the shared facts.


In the single-blind test, a law administrator may show the witness pictures of suspects. While the
witness does not know the identity of the suspect, the administrator does. The disadvantage is
that the administrator may subtly influence the witness’s identification of a suspect. 7 In the
double-blind approach however, both the administrator and the witness do not know the identity
of the suspect. This redresses the bias of a single-blind approach by ensuring that the results are
not biased, whether by accident or deliberately. The double-blind approach is therefore more
effective as it maintains the integrity of the process and avoids unfounded bias.

7 Susan J. Henrichon, Examples of a Double Blinded Study Experiment, (2018) Accessed from <>