Confrontation Clause Flashcards
Confrontation Clause
The Confrontation Clause arises when:
(1) In a criminal case;
(2) Hearsay statement is offered;
(3) Against the accused;
(4) A hearsay exception applies; and
(5) The statement is testimonial.
The Confrontation Clause is satisfied when the declarant is available and the accused has had an opportunity to cross-examine them, or if there is an applicable exception.
Confrontation Clause Exceptions
The Confrontation Clause is satisfied when the declarant is available and the accused has had an opportunity to cross-examine them.
When the declarant is unavailable, the Confrontation Clause may still be satisfied if:
(1) The prosecutor made every effort to produce the declarant;
(2) The declarant made a prior statement while under oath; and
(3) The accused had a prior opportunity to cross-examine the declarant;
OR
(4) The accused forfeited their right to confront by wrongfully making the declarant unavailable with the intent of preventing their trial testimony.
Non-Testimonial Statements Examples
(1) Casual Remarks to Acquaintances
(2) Offhand Remarks
(3) Overhead Remarks
(4) Statements in Furtherance of a Conspiracy
(5) Some Business Records
(6) Statements made to police with the primary purpose to resolve an ongoing emergency.
Testimonial Statements Examples
(1) Solemn Declarations to establish a fact to be used later in a criminal proceeding;
(2) Prior Testimony while under Oath;
(3) Statements obtained by Government Officials for later use in a trial;
(4) Statements made during a Police Interrogation/Questioning;
(a) When there is objectively no ongoing emergency; and
(b) The primary purpose of the statement is for later use in a criminal proceeding;
(5) Documents made solely for evidentiary purpose to aid in a criminal proceeding.
SCOTUS Testimonial Tests
(1) Scalia & Ginsburg Test
- Subjective Primary Purpose Test
- Bullcoming, footnote 6 Test
(2) Thomas Test
- Solemn & Formal Test
(3) Ohio v. Clark / Five Justices Test
- Objective Primary Purpose Test
- Alito, Roberts, Breyer, Sotomayor, & Kagan
Scalia & Ginsburg
Subjective Primary Purpose Test
(1) Primary Purpose;
(2) Declarant’s Subjective Intent;
(3) Proving/establishing past events potentially relevant to criminal prosecution.
(Bullcoming, fn. 6)
Thomas
Solemn & Formal Test
(1) Solemn (sworn, notarized, etc.);
(2) Formal (extrajudicial statements, etc.);
(3) The functional equivalent of in-court testimony.
Ohio v. Clark (Five Justices)
Objective Primary Purpose Test
This test applies in all non-lab-report cases and some lab report cases.
(1) Primary Purpose;
(2) Objectively considering all the circumstances;
(3) Declarant’s objective intent; and
(4) To create an out-of-court substitute for in-court testimony.
Alito, Roberts, Breyer, Sotomayor, & Kagan
NOTE: In this ruling, the men abandoned their “reliability” factor from Williams.
Major Lab Report Cases
(1) Melendez-Diaz
(2) Bullcoming
(3) Williams
Melendez-Diaz
(1) Sworn report prepared for solely evidentiary purposes
(2) No testimony by lab analyst
Bullcoming
(1) Report prepared in connection to criminal investigation
(2) Surrogate testimony
Williams
(1) Report prepared by third-party lab
(2) Certifying lab analyst unaware of report’s purpose (creates reliability)
(3) Not prepared primary purpose of accusing targeted individual
(4) Report not admitted
(5) Report used as basis of expert testimony
SCOTUS Split on Lab Report Cases
Scalia, RBG, Stevens, Souter, Sotomayor, & Kagan → Report’s analyst must testify (2-5 Justices)
Kennedy, Roberts, Breyer, & Alito → No testimony by report’s analyst needed if reliable (3-6 Justices)
Gorsuch, Kavanaugh, & ACB → ???
Bruton Doctrine
(1) Criminal case;
(2) Joint trial;
(3) Codefendant’s out-of-court confession;
(4) Used against Defendant;
(5) Confessing codefendant does not testify
(6) Even when:
(a) Defendant independently confesses;
(b) Jury instructed not to use coconspirator’s confession against defendant;
(c) Statement is obviously redacted
Avoiding Bruton
(1) Confessing codefendant testifies;
(2) Severed trials;
(3) Separate juries;
(4) Special redactions;
(5) All defendants agree to bench trial.
