Witness Affidavit Submitted Years Earlier In Administrative Immigration Proceeding Cannot Be Admitted In Subsequent Criminal Trial

Following the Supreme Court's Confrontation Clause jurisprudence over the last ten years, since the decision in Crawford v. Washington, 124 S. Ct. 1354 (2004), and the resulting interpretations of lower courts, has proven to be an uncertain and sometimes dizzying ride. The Court did not initially enunciate a test to determine the admissibility of out-of-court statements made by unavailable witnesses sufficiently brightly-lined to permit anything approaching predictable outcomes in individual cases. As discussed here, here, and here, the overall result has been less a bright line than a dimly illuminated, shifting path.

The starting point derived from the cases is that an out-of-court statement is "testimonial" if its primary purpose is to establish facts for use at a trial. Crawford, 124 S. Ct. at 1354; Davis v. Washington, 547 U.S. 813, 822 (2006). We are also informed that statements which qualify as "business records" under Fed. R. Evid. 803(6) are still admissible without live...