Evidence Commons^™

Crawford V. Washington And Davis V. Washington'S Originalism: Historical Arguments Showing Child Abuse Victims' Statements To Physicians Are Nontestimonial And Admissible As An Exception To The Confrontation Clause, Tom Harbinson

Mercer Law Review

Under Crawford v. Washington and Davis v. Washington, the Supreme Court has created a new interpretation of the right of confrontation that holds out-of-court testimonial statements inadmissible without cross-examination. In order to determine if statements for purposes of medical diagnosis and treatment should continue to be an exception to confrontation, this Article reviews the historical evidence cited by the Court. The Court's originalist analysis holds that the only exception for what the Court refers to as "testimonial statements" is the exception for dying declarations. This Article establishes that a significant number of confrontation exceptions existed for testimonial statements in …