Fred O. Smith, Crawford’s Aftershock: Aligning the Regulation of Non-Testimonial Hearsay with the Purposes and History of the Confrontation Clause, 60 Stan. L. Rev. 1497 (2008)
Part I examines historical sources, such as the common law, near the Founding, as well as the text of the Confrontation Clause and concludes that nontestimonial hearsay was one of the ills that the clause was designed to protect against. Part I additionally proposes a two-tiered approach to interpreting the Confrontation Clause, in which testimonial statements receive the most vigorous form of constitutional scrutiny, but nontestimonial statements receive meaningful scrutiny as well. The United States Constitution is no stranger to such a two-tiered approach to implementing its amendments.
Part II more carefully explores what "confrontation" should mean, both historically and practically, in the context of nontestimonial hearsay. After marshaling relevant case law, historical texts, jury instructions and practitioners' guides, Part II concludes that simply reimplementing Roberts would not adequately or faithfully result in the type of meaningful confrontation demanded by the clause. Part III then proposes four interpretive reforms that would bring American courts closer to harmonizing the Confrontation Clause's regulation with the provision's full range of historical and practical values.