Prof. Colin Miller takes up the current status of Crawford with this intriguing title: Post-Bryant Case Law Confirms Scalia’s Fears. His premise quite simply is that we are back to Ohio v. Roberts and measuring “reliability” using different phraseology.
In my view, a test that hinges upon the hidden and empirically unknowable “primary” purposes of hypothetical similarly-situated declarants and interrogators, and one which takes all relevant factors into account in making that determination, is no better than one that requires a judge to determine a statement’s “reliability.” While I am not sure of the most appropriate solution at this time, the natural thought would be to replace Bryant’s multi-factor test with a simpler test, one that would not require courts to examine the potentially mixed motives of declarant and interrogator. I have written an article proposing a bright-line rule to replace Bryant’s factors test. You can download the full article here:http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1921606