Liza I Karsai (Atlanta’s John Marshall Law School) has posted The ‘Horse Stealer’s’ Trial Returns: How Crawford’s Testimonial-Nontestimonial Dichotomy Harms the Right to Confront Witnesses, the Presumption of Innocence, and the ‘Beyond a Reasonable Doubt’ Standard (Drake Law Review, Vol. 62, No. 129, 2013) on SSRN.

Here is the beginning of the abstract:

The Sixth Amendment to the United States Constitution provides a defendant to a criminal charge with the right to confront the witnesses against him. In Crawford v. Washington, 541 U.S. 36 (2004), the United States Supreme Court set out a bright-line test, under which the right of confrontation applies only to (1) witnesses who appear at trial, and (2) hearsay declarants whose out-of-court statements are “testimonial.” The Court has never fully defined the term “testimonial” but, at a minimum, testimonial statements include “formal” statements made for the primary purpose of establishing or proving a past fact for use as evidence. Hearsay statements that were not made with the primary purpose of furnishing evidence, such as statements to friends and family members, statements to jailhouse informants, and government surveillance recordings of statements made by individuals who lacked awareness of the surveillance, have been classified “nontestimonial” in the Court’s dicta or by lower courts applying Crawford’s test. Nontestimonial statements are subject only to any hearsay rules in the relevant jurisdiction. Accordingly, if the hearsay rule is liberalized or abolished in the future, the effect would be to further liberalize the admission of unconfronted nontestimonial statements as evidence of guilt at a criminal trial.