Tom Harbinson

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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 1791, which indicates that Crawford's central holding-that the Founders intended the Confrontation Clause to be an absolute bar to the admission of out-of-court testimonial statements-is inaccurate. The historical evidence also indicates that statements for purposes of medical treatment and diagnosis were a confrontation exception in 1791 and should continue to be an exception today. This Article also asserts that the definition of testimonial statements should be limited to formal statements taken by law enforcement officers or their agents and outlines how agency law should be used as part of the Court's new interpretation of confrontation.