The U.S. Supreme Court held in Crawford v. Washington, 541 U.S. 36, 53-54 (2004), that the admission of testimonial hearsay against a defendant in a criminal trial violates the Confrontation Clause of the Sixth Amendment to the U.S. Constitution "unless [the declarant] was unavailable to testify and the defendant ha[s] had a prior opportunity for cross-examination."1 Admissibility of a hearsay statement, otherwise admissible under a recognized hearsay exception, thus turns on the category that the statement falls intowhether the statement, oral or written, is testimonial or non-testimonial.
Much litigation has ensued over the boundaries of these categories, especially as to the classification of forensic reports of the results of, for example, fingerprint analysis, ballistic tests, chemical tests of suspected drugs, and blood and tissue tests performed through DNA sampling; and the records of the maintenance/calibration/inspection efforts employed to ensure that the devices or machines utilized in those analyses and tests are working properly. Crawford and its now many progeny, as observed by one commentator, have created an "incredibly complex, unworkable, and totally theoretically unsound approach" for making the determination of testimonial/non-testimonial as to such reports and records as well as hearsay statements generally.2
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