Confrontation Clause

Question 1

Confrontation Clause General Rule

Answer 1

Under the confrontation clause, a hearsay statement will not be admitted where

1) the statement is being offered against the defendant in a criminal case;
2) the declarant is unavailable;
3) the statement was testimonial in nature; and
4) the accused had not opportunity to cross examine the declarant’s testimonial statement prior to trial

However, this does not apply if the defendant wrongfully caused the declarant’s unavailability and did so intending to keep the declarant from testifying.

NOTE - the confrontation clause poses no barrier to the prosecution’s use of non-testimonial statements

Question 2

Testimonial Statements

Answer 2

At a minimum is includes prior testimony at a preliminary hearing, before a grand jury, at a former trial, or statements made during police interrogations. The government’s role in eliciting the out of court statement may be important to its classification as testimonial.

Question 3

Statements made in Laboratory Reports

Answer 3

Statements made in lab reports are testimonial and inadmissible unless testimony is given by a certifying chemist. The certifying chemist must be the one who prepared the report. Testimony by another chemist who did not prepares the report is insufficient.

HOWEVER, an expert witness may partially rely on a lab report prepared by an absent technician as the expert prepares to give his testimony.

Question 4

Statements to 911 Operators and First Responders

Answer 4

These statements are subject to the primary purpose test.

– If the primary purpose of gathering the information is to enable the police to assist in an ongoing emergency, the statements are nontestimonial

– If the primary purpose of gathering the information is to establish or prove past events potentially relevant to later criminal prosecution, then the statements are testimonial

Question 5

Statements by Child Abuse Victims

Answer 5

If the statements were made to primarily identify and end the threat, then they are nontestimonial.

If the statements were made primarily to prosecute the abuser, then they are testimonial.

Question 6

Bruton Doctrine

Answer 6

The confrontation clause prohibits the use of a co-defendant’s confession against the accused, even if both defendants are tried in a joint trial. UNLESS, the confessing defendant testifies and is subject to cross examination.

Question 7

What is not Testimonial

Answer 7

– offhand overheard remarks
– a casual remark to an acquaintance
– business records
– statements in furtherance of a conspiracy

Question 8

When testimonial statements are admissible against the defendant

Answer 8

– when the declarant testifies and is subject to cross examination
– when the declarant is unavailable and the defendant had a prior opportunity to cross examine the declarant
– when a testimonial statement is not being offered for its truth
– when there is forfeiture by wrongdoing
– dying declarations based on historical acceptance
– waiving constitutional protections by failing to object when the evidence is admitted