Confrontation Clause

Question 1

Sixth Amendment—Confrontation Clause and Hearsay Evidence

Answer 1

In a criminal trial, the Confrontation Clause of the Sixth Amendment requires that, in order to admit an out-of-court _testimonial statement_ of a declarant (i.e., hearsay) against a defendant:

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

Note: The Supreme Court suggested in dicta in Crawford 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. Crawford v. Washington, 541 U.S. 36, 56, n.6 (2004).

Question 2

Testimonial Statements

Answer 2

In determining whether a statement is testimonial, an objective analysis of the circumstances, rather than the subjective purpose of the participants, is key.

A statement made during a police interrogation that had the primary purpose of ascertaining past criminal conduct is testimonial, as is a certificate of a governmental laboratory analyst that a substance was an illegal drug.

By contrast, a statement made to police during the course of questioning with the primary purpose of enabling police to provide assistance to meet an ongoing emergency (e.g., a 911 call) is not testimonial, nor is a statement made by a fatally wounded victim as to the identity of his assailant in response to police questioning, because the statement was made to assist the police in addressing an on- going emergency.

Question 3

Example of Testimonial Statements vs. Nontestimonial Statements

Answer 3

Testimonial:

i) A statement made during a police interrogation that had the primary purpose of ascertaining past criminal conduct is testimonial
ii) A certificate of a governmental laboratory analyst that a substance was an illegal drug.

Nontestimonial:

i) A statement made to police during the course of questioning with the primary purpose of enabling police to provide assistance to meet an ongoing emergency (e.g., a 911 call) is not testimonial.
ii) A statement made by a fatally wounded victim as to the identity of his assailant in response to police questioning, because the statement was made to assist the police in addressing an on-going emergency.
iii) A statement made to an individual who is not a law enforcement officer, such as a teacher, is much less likely to be testimonial than a statement made to a law enforcement officer, even when the individual is under a duty to report such statements to police (e.g., school personnel’s statutory obligation to report suspected child abuse to police)
* Example: Statements made by a young child to his teachers in response to questions about physical evidence of abuse that identified the defendant as the child’s abuser were not testimonial.
iv) A statement made by a very young child (e.g., a three-year old) will seldom, if ever, be testimonial.

Question 4

Unavailability of the Declarant

Answer 4

The Confrontation Clause mandates that the use of hearsay evidence based on the forfeiture-by-wrongdoing exception requires the defendant to have acted with the particular purpose of making the witness unavailable.

***The mere fact that the declarant is unavailable due to the defendant’s act (e.g., murder of the witness) is not sufficient to establish such a purpose when the defendant is on trial for the act that made the witness unavailable. Giles v. California, 554 U.S. 353 (2008).***

Question 5

Fourteenth Amendment – Due Process Clause

Answer 5

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.

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 6

Face-to-Face Confrontation

Answer 6

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

Example: A defendant who is charged with committing a sex crime against a child can force the child victim to testify in open court rather than from behind a screen that blocks the witness’s view of the defendant. Coy v. Iowa, 487 U.S. 1012 (1988).

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

Example: A child victim of a sex crime could testify via a one-way closed circuit television when there was a specific finding that the child witness would suffer serious emotional distress if the witness was required to testify in open court. Maryland v. Craig, 497 U.S. 836 (1990). The Court in Coy, above, refused to recognize a presumption of trauma to witnesses who were victims of sexual abuse.