Crawford's Revolutions

Crawford v. Washington, the starting point for the Supreme Court’s modern Confrontation Clause jurisprudence, has long been described as a “revolution.” At the time of the Crawford decision, it was perfectly natural for commentators to view it as revolutionary: The case upended the existing doctrinal framework under Ohio v. Roberts, which grounded Confrontation in hearsay doctrine. In its place, the Supreme Court placed Confrontation doctrine on originalist underpinnings, requiring that any “testimonial” statement be subject to cross-examination. The resulting uncertainty was destabilizing, and in the intervening years, courts, practitioners, and commentators alike have struggled to predict and interpret each of the Court’s new pronouncements. But was Crawford really a revolution? Indeed, did the Supreme Court even intend for Crawford to be a revolution? The answers to those questions turn on what exactly we mean by “revolution,” a fraught word with multiple meanings. This short Essay explores Crawford’s revolutions—the one that was not, the one that was, and the one that may be yet to come.