Confrontation Clause

Question 1

Confrontation Clause

Answer 1

An out-of-court statement offered against D will be excluded if:

• the declarant is currently unavailable
• D had no prior opportunity to cross-examine the the declarant about the statement at the time it was made, and
• the statement is testimonial

Question 2

Confrontation Clause: Exception

Answer 2

An out-of-court statement will not be excluded if declarant is unavailable as a result of D’s own wrongdoing

Question 3

Confrontation Clause: Testimonial Statement

Answer 3

Includes

• prior statements made during court proceedings
• statements made in furtherance of a police investigation
• /= business records

Question 4

Confrontation Clause: Exception to Testimonial Statement

Answer 4

Statements made to police during an ongoing emergency are non-testimonial and can be admitted without violating the Confrontation Clause

Question 5

Co-Defendant Statements

Answer 5

The Confrontation Clause bars admission of an out-of-court statement by a non-testifying co-D if the statement expressly implicates another D

Question 6

Co-Defendant Statements: Exceptions

Answer 6

A co-D’s out-of-court statement is admissible if either:

• a declarant co-defendant testifies (and is subject to cross)
• portions of the co-defendant’s testimony referring to the non-declarant D are redacted (must clearly make non-declarant co-D’s identity anonymous)
• the statement is used to rebut a charge of a coerced confession