9. Confrontation Clause

Question 1

Confrontation Clause

Answer 1

An otherwise admissible out-of-court statement offered against D in criminal case may be excluded under 6th Amendment Confrontation Clause

Out-of-court statement offered against D will be excluded if:
♣ 1. Declarant is currently unavailable;
♣ 2. D had no prior opportunity to cross-examine declarant about statement at time it was made; and
♣ 3. Statement is testimonial
* Exception: an out-of-court state will not be excluded if declarant is unavailable as a result of D’s own wrongdoing.

Testimonial statement includes:
♣ Prior statements made during court proceedings
♣ Statements made in furtherance of a police investigation

Exception: statements made to police during an ongoing emergency are non-testimonial
o They can be admitted without violating the confrontation clause

Question 2

Co-defendant Statements

Answer 2

Confrontation clause bars admission of out-of-court statement by non-testifying co-D if statement expressly implicates another D.

Exceptions: co-D’s out-of-court statement is admissible if either:
♣ Declarant co-D testifies
♣ Redaction: portion of co-D’s testimony referring to non-declarant D are redacted
♣ Coerced confession: statement is used to rebut charge of coerced confession