0: Constitutional limitations

Question 1

Confrontation Clause

Answer 1

Under the Crawford doctrine, out-of-court statements that are testimonial give rise to Confrontation Clause problems.

Statements are testimonial if they are made with the primary purpose of ascertaining past criminal conduct.

In order to admit an out-of-court testimonial statement of a declarant (i.e., hearsay) against a defendant:

(1) The declarant must be unavailable; and
(2) The defendant must have had a prior opportunity to cross-examine the declarant.

Question 2

Confrontation Clause: dying declarations

Answer 2

In Crawford, the Supreme Court suggested but did not rule that the Confrontation Clause does not preclude the admission of a dying declaration as hearsay, even if the statement is testimonial, since this common-law exception predates the Confrontation Clause.

Question 3

Due process: Fourteenth Amendment

Answer 3

The Due Process Clause of the Fourteenth Amendment may prevent application of a hearsay rule when such rule unduly restricts a defendant’s ability to mount a defense.

For example: application of a state evidentiary rule that prevents a defendant from using a witness’s hearsay statements to impeach the witness’s in-court testimony operated to deny the defendant the ability to present witnesses in the defendant’s own defense.

Question 4

Confrontation Clause: face-to-face confrontation

Answer 4

The Confrontation Clause reflects a preference for face-to-face confrontation of a defendant and a witness in court.

This type of confrontation may be denied, however, if there is an important public interest at stake, such as protecting a child.

Question 5

Confrontation Clause: emergency doctrine

Answer 5

Statements are not considered testimonial if they are made for the purpose of getting help, i.e., with the primary purpose of enabling police to provide assistance to meet an ongoing emergency.

Question 6

Due Process: right to cross-examine

Answer 6

The right to confront and cross-examine witnesses at a civil trial stems from the Due Process Clauses of the Fifth and Fourteenth Amendments.

Question 7

Confrontation Clause: records

Answer 7

Under Crawford, business records—and other records not prepared for the purpose of being used in a criminal prosecution—-generally are not testimonial.

Question 8

Confrontation Clause: child witnesses

Answer 8

For Confrontation Clause purposes, the state’s interest in protecting child witnesses from more than de minimis trauma as a result of testifying in the defendant’s presence is considered an important public purpose.

But the defendant must still be able to:

(1) cross-examine the witness regarding the witness’s testimony; and
(2) observe the demeanor of an adverse witness.