Seventh Circuit Review


In 2004, the Supreme Court of the United States changed the legal landscape when it decided United States v. Crawford. The Court declared that a prior testimonial statement made by a declarant who does not testify at trial may only be admitted against a criminal defendant if both the declarant is unavailable to testify and the defendant had a prior opportunity to cross-examine him or her. Over time, courts have made clear that if a statement is testimonial in nature it is subject to the constraints of the Sixth Amendment's Confrontation Clause. However, despite these holdings, courts and scholars have grappled with the meaning of "testimonial" and with the way to apply the haphazard definition to courtroom situations. Most troubling is the handling of statements that normally would fall under an accepted hearsay exception (usually deemed nontestimonial), but in fact were prepared in anticipation of litigation (usually considered testimonial). Is such a hybrid statement afforded the protections of the Confrontation Clause? The Seventh Circuit, in United States v. Ellis, has said no. However, other courts have said yes. Even after three years and countless decisions, the meaning of testimonial still causes legal headaches. This Note will attempt to bring coherence to the intersection between the Confrontation Clause and the business-records exception and propose a new rule: If a document is prepared in anticipation of litigation, then it should be considered testimonial, and thus afforded the protection of the Confrontation Clause.

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