CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Tuesday, October 23, 2012

Keenan on Crawford in the Lower Courts

Dylan O. Keenan  has posted Confronting Crawford v. Washington in the Lower Courts (Yale Law Journal, Vol. 122, 2012) on SSRN. Here is the abstract:

Crawford v. Washington is arguably the most significant criminal procedure decision of the last decade. Critics have argued that the Crawford line is a doctrinal muddle that has led to arbitrary and unpredictable results in the lower courts. I respond to this critique with empirical evidence by presenting results from the first statistical analysis of post-Crawford Confrontation Clause cases. The results show that lower courts have emphasized two factors — the presence of a state actor and the presence of an injured party — to evaluate whether a statement is testimonial under Crawford. I then argue that these results are not ambiguous or contradictory but consistent with Crawford’s reasoning and the underlying purposes of the Confrontation Clause.

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