Does the Confrontation Clause Bar Out-Of-Courtroom Testimonial Statement ?
In Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), the Supreme Court abandoned this reliability framework in relation to testimonial statements.
In its place, the Court held that the confrontation clause bars out-of-court testimonial statements unless the declarant is unavailable to testify and the defendant had a prior opportunity to cross-examine the declarant, regardless of whether the court finds adequate indicia of reliability. Crawford, 541 U.S. at 68, 124 S. Ct. at 1374.
Although the Crawford Court left "for another day any effort to spell out a comprehensive definition of 'testimonial"' (Crawford, 541 U.S. at 68 , 124 S. Ct. at 1374), it did provide several examples of what it termed "various formulations of [the] core class of 'testimonial' statements" (Crawford, 541 U.S. at 50, 124 S. Ct. at 1364).
(1) "'ex parte in-court testimony or its functional equivalent that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially"';
(2) "'extrajudicial statements... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony or confessions"';
(3) "'statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial"';
(4) "statements taken by police officers in the course of interrogations." Crawford, 541 U.S. at 50, 124 S. Ct. at 1364.