Mar 10, 2011
Post Crawford v. Washington, 541 U.S. 36 (2004), hearsay was categorized as either testimonial or non-testimonial. “Testimonial” means a statement made under circumstances that would cause a reasonable witness to believe the statement could be used later at trial. If testimonial, then the declarant should be made available for trial to be cross-examined; and if not present for trial, then the prosecution must demonstrate that the declarant is both unavailable and that there was a prior opportunity to cross-examine the declarant. If hearsay is non-testimonial, then there is no requirement to call the declarant and the trial counsel can reply on an exception e.g., MRE
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