Understanding the Confrontation Clause

The Court held in Crawford v. Washington that testimonial evidence is inadmissible when it originates from a source unavailable for examination by the defendant. 541 U.S. 36 (2004). The companion case Davis v. Washington concluded that statements made in "circumstances that objectively indicate that there is no ongoing emergency and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution" are testimonial in nature. 126 S. Ct. 2266 (2006). The Court, through the standards articulated in Crawford and Davis renders a broad interpretation of testimony to the Confrontation Clause to bar all hearsay statements where the declarant is unavailable and where the defendant has not had an opportunity cross-examine the declarant. Statements regarding the defendant were gathered from Mr. Har's family members to be introduced specifically against him at trial as part of the prosecution's case. They are clearly testimonial in nature under Crawford and Davis. Since the declarants were not available for cross-examination by Mr. Har, they were inadmissible. As the Court is clear that the Sixth Amendment affords a defendant in a criminal trial the right to confront those who bear witness against him, the denial of this right to Mr. Har is a violation of his Constitutional right of confrontation. Whether "limitations on cross-examination are so severe as to amount to a violation of the confrontation clause is a question of law reviewed de novo." United States v. Vargas, F.2d 701, 903 (1991).
A. The Supreme Court's construction of the Confrontation Clause supports the view that out of court testimonial statements unavailable for cross-examination are inadmissible.