In Crawford v. Washington, the Supreme Court overruled Ohio v. Roberts and adopted new law concerning the use of hearsay testimony at criminal trials. This was based on the Sixth Amendment's command that "In all criminal prosecutions the accused shall enjoy the right . . . to be confronted with the witnesses against him .. " On its face this provision seems to say that the accused has the right to cross-examine anybody who testifies for the prosecution at trial, whether as a live witness or through hearsay. The Supreme Court acknowledged much of this in Crawford, but limited the right of cross-examination to "testimonial" but not "nontestimonial" hearsay. That is, testimony as to "statements made under circumstances which would lead an objective witness to believe that the statement would be available for use at a later trial," including police interrogations, are "testimonial" and cannot be used unless the declarant is available for cross-examination. On the other hand, "nontestimonial" statements, such as 911 calls or other "statements about events as they were actually happening" may be presented at trial with no need for cross-examination.

In Melendez Diaz v. Massachusetts, the question was whether the testimony of experts who had performed scientific tests was "testimonial" or "nontestimonial." Since such tests are performed for use at a later trial, the Court, under the above Crawford formulation, concluded that they were "testimonial" and consequently couldn't be used unless the expert who performed the tests was available to testify at trial. This article, while agreeing with the outcome in Melendez-Diaz, argues that the testimonial/non-testimonial distinction makes no sense. As is evident from the Sixth Amendment itself, it applies to all testimony in court. However, as the Supreme Court has recognized in other cases, notably Scott v. Illinois, limiting the Sixth Amendment right to trial by jury to cases where imprisonment is an option, sometimes practical concerns must limit recognition of an Amendment's reach. Accordingly, this article proposes that the right to confront witnesses be limited to cases in which the defendant is able to demonstrate a need to cross-examine witnesses, rather than the rule of Crawford that limits the right based on the nature of the evidence itself. This would be both truer to the language of the Amendment and, more importantly, more clearly advance the overriding goal of fairer trials.