Seventh Circuit Review


In Crawford v. Washington, the Supreme Court overturned years of precedent holding that any hearsay statement that is deemed "testimonial" cannot be admitted into evidence unless the defendant has the opportunity to confront and cross-examine the declarant. Because the Court did not define testimonial, trial and appellate courts have been required to do so. Many Courts of Appeals have held that a statement is testimonial if a reasonable declarant would believe the statement would be used in court. However, in United States v. Gilbertson the Seventh Circuit abandoned the Supreme Court's reasoning in Crawford v. Washington when it held that only communications initiated by the government qualify as testimonial. This article concludes that the Seventh Circuit improperly narrowed the definition of testimonial by holding that the government must initiate the communication.

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