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Admittedly, good arguments could be made that most of the hearsay offered in White would be admitted even under the Crawford rule. The child's statements to her babysitter and her mother would likely not have been testimonial.
Additionally, without attempting to defend Roberts's failure to adequately ensure the reliability of hearsay admitted against an accused, it was pointed out that the Crawford rule does as little to ensure the reliability of a statement as the Roberts rule did.
This is not all bad, so long as the Court is willing to moderate the Crawford rule. (203) As time goes by, the Court will assuredly offer more guidance as to the meaning of the term "testimonial," and state courts will continue to refine their own definitions of it.
That is, by coupling the categorical protection afforded defendants by the Crawford rule with the flexibility of substantive approach we can empower our courts to attain the closest approximation of true justice in any given case; we can protect the confrontation right and still vindicate the public interest without "'material departure from the reason of the general rule.'" (204)
(125) Note that strict application of the Crawford rule, as in Orpin, would allow scores of drunk drivers to escape the repercussions of their dangerous behavior, and, consequently, New York State's roadways would be less safe.
(22) In 2004, the Supreme Court revitalized this argument when it provided the new Crawford rule of confrontation, which bars all testimonial out-of-court statements when a witness is unavailable to testify at trial unless the defendant had a prior opportunity to cross-examine that witness.
While the other issues surrounding CSA cases--the need to protect children from the trauma of testifying at trial and the need to admit children's statements into evidence--have not disappeared, the Crawford rule has made it much more difficult to admit children's ex parte statements in CSA trials.
Finally, Section IV proposes a way that unavailable child victims' voices can be heard in the courtroom while still upholding the defendant's right to test the reliability of a child's allegations under the Crawford rule of confrontation.
Under the Crawford rule of confrontation, when a witness is unavailable to testify at trial, his ex parte statements are inadmissible if they are testimonial in nature.
This article discusses the interpretive problem posed by Crawford and looks at some of the problems facing prosecutors attempting to satisfy the Crawford rules for the admission of evidence that contains testimonial statements of persons who are not witnesses.
In the interim, courts will differ regarding what statements are testimonial and what the Crawford rules require.