This Article takes the position that co-conspirator statements must be examined on a case-by-case basis to determine whether they are testimonial and thus subject to exclusion under the Confrontation Clause. Further, in light of the fact that the author of the majority opinions in Crawford and Davis was Justice Antonin Scalia, this Article examines whether interpreting the Sixth Amendment as a bar to the admission of certain coconspirator statements would violate an originalist interpretation of that provision. The conclusion reached is that it would not. In the current era of ever-narrowing rights for criminal defendants, reaffirming the law's commitment to this one layer of protection whenever warranted seems to be the least we can do to promote justice.
Michael L. Seigel & Daniel Weisman, Admissibility of Co-Conspirator Statements in a Post-Crawford World, 34 Fla. St. U. L. Rev. 877 (2006-2007), available at http://scholarship.law.ufl.edu/facultypub/78