Confrontation Clause

Question 1

6th amendment

Answer 1

…to be confronted with the witness against him…
only applies in criminal cases and to the D
Hearsay & Confrontation are both exclusionary- you have to evaluate both (if either is violated, its out) not entirely different but are both concerned with reliability and cross-examination as being key.

CC

Question 2

CA v. Green

Answer 2

drug dealing case. testifies at a prelim hearing and subject to cross. Then called at trial and changed story. Offered prelim transcript.
allowed under 801d1A
Issue: did admission of the prelim testimony violate CC
Held: no; being cronfronted now and when the statement was made, subject to cross, you got confrontation then too.
prior cross OR now subject to cross, no violation of the CC.

Question 3

Crawford v. Washington

Answer 3

D & Wife attack V; charged with attempted murder and assault. D claims self-defense
E: statement of W to police stating that V had no weapon
Issue: does the CC prevent admission of the statement?
held: testimonial hearsay without cross= statements admitted violate CC.

Question 4

Crawford v. Washington: historical analysis of the CC

Answer 4

A) CC was directed at stopping the abusive civil law testimony methods whicih allowed testimony without the D present.
B) Testimonial statements inadmissible without a change to cross.

Question 5

Crawford v. Washinton Prior case law on the issue

Answer 5

Ohio v. Roberts (allowed testimony hearsay to come in and not subject to cross): overruled. right to confront even if the testimony is reliable. Reliability test incorrect: reliability can only be tested through specific method- cross.
When testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constiutional demands is the one the constitution prescribes: confrontation by cross-exam.

Question 6

Crawford v. Washington
What is testimonial hearsay

Answer 6

applies at a minimum to
1. prelim hearing testimony
2. grand jury testimony
3. former trial testimony
4. police interrogations (but only some statements to police)
does not include spontaneous statements
always being used for the truth.

Question 7

Crawford v. Washington
not testimonial hearsay

Answer 7

1. non formalized statements to the polcie
2. non-formalized statements in general
3. if the statement is being used for a non-hearsay purpose

Question 8

Davis

Answer 8

911 call of D’s girlfrind during and immediately after assault. Admits for presence sense impression.
statements are non testimonial: current, on-going situation, established ongoing emergency; no CC violation.
held: in davis, the only statement at issue was at beginning (the ID), and clearly non-testimonial.
How to know when the tape changes from non-t to t:
burden remains on party saying E is non-t
judicial discretion

Question 9

Hammon

Answer 9

DV call, V on the proch, D inside, broken stove. Admits for excited utterance.
statements testimonial: taken after emergency has calmed, officers were investigating past events.
improper admit; CC violated when admitted without cross.

Question 10

David & Hammon

Non-testimonial statements and testimonial statements

Answer 10

defined non-testimonial statements:
when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.
Testimonial: There is no such emergency, primary purpose is to establish or prove past events potentially relevant to later judicial proceeding

Question 11

Michigan v. Bryant

Answer 11

police arrive at gas station. V has been shot, Police ask questions until medical arrives.
TC admits V statements as excited utterance
Issue: were V’s statements testimonial (requiring cross) or non-testimonial?
Test: still use Davis primary purpose test but also consider:
1. hearsay exceptions and basis (exception based on reliability)
2. context of the statements: officers questions, type of V, type of weapon, informality of the exchange, V’s medical condition
Held: V’s statements were not testimonial
because: informality of the exchnage, type of weapon, not obvious what had happened, only asked general questions
if not testimonial, cannot have a CC violation.

Question 12

CC; other issues

Answer 12

1. forfeiture by wrongdoing may waive CC claim
2. dying declarations: speical case on CC, w/necessity. crawford state there is authority to admit dying declarations, even if testimonial over cc objections
3. experts: when test/analysis is done and admitted- have to have the person who did that specific test on the stand and subject to cross.
4. [unresolved] can an expert base their opinion partially on hearsay from an absent, non-testifying W? opinion left issue unresolved, although plurality allowed E finding that it was not offered for the truth so no CC issue.

Question 13

Non testimonial statement

Answer 13

1. casual remark to acquaintance
2. off hand, overhead remarks
3. statements made in furtherance of a conspiracy
4. some business records
5. primary purpose test: statements in the course of police questioning under circumstances objectively indicating the primary purpose of the questioning is to enable police assistance to an ongoing emergency

Question 14

Testimonial statement

Answer 14

1. solemn declaration made for the purpose of establishing/proving a fact
2. prior testimony at a PH, GJ or former trial
3. statements produced with the involvement of government officers with an eye toward trial

Question 15

Likely testimonial

Answer 15

a. it described past events, rather than events happening now
b. declarant not facing ongoing emergency
c. statement to learn about what happened in the past, not to resolve present emergency
d. statement served as an obvious substitute for live testimony, because it did what a W does on direct

Question 16

Inidicia of formality

Answer 16

taken at a station house, series of questions by the examiner, being recorded by the police, involved separation of suspect and declarant, made under circumstances in which deliberate falsehood

Question 17

problem 8.5

State v. Jensen;
W gives letter to neighbor to give to police if she died that she would never commit suicide. W dies of poisoning

Answer 17

Is the letter testimonial:
Yes; no emergency, solemn declaration, made for the purpose of giving to the police (eye towards litigation)
no; letter was given to a friend, not proving past action because she hadnt died yet,

Question 18

Bruton v. US

Answer 18

Co-D and D rob post office, Co-D confessed
TC: admitted co-D confession, instruction to use v. only co-D.
fomer rule: Delli Paoli: Allow co-D confessions with limiting instructions; Problem (jackson v. Denno) juries unable to ignore confessions due to power
Held: A co-D confession implicating D and co-D cannot be admited- even with a limiting instruction- against one of 2 co-D’s in a joint trial, without violating the CC rights of other co-D
1. confessions are very powerful, once jury hears it they will believe it
2. limiting instructions: jury following them here is an unmitigating fiction
3. efficiency joint trials are prefereable, but CC is important as well.

Question 19

how to hold trials with co-D issues

Answer 19

many situations do not require separate trials.
1. co-D statement directly admissible v. non-speaking D
2. Confessor takes stand and is subject to cross by co-D
3. bench trial- no jury, only judge
4. non-testimonial hearsay: testimonial hearsay needed to violate CC
if bruton error happens (co-d testimonial confession implicating both, not directly admissible vs. D, in a jury trial (1 jury), and no cross
a. separate trials
b. Separate juries
c. edit the confession- remove references to the D from co-D.

Question 20

Gray v. Maryland

Answer 20

issue: what happens if co-D has not been entirely removed from the confession, but replaced with deleted or blanks
Bell confessed that he, gray and tank beat the V to death
TC admitted a redacted confession with limiting instruction
if confession read in whole at trial, would be Bruton error: testimonial confession of D admitted against co D with no cross, 1 jury, not directl admissible against Gray.
redactions of this nature (deleted) leave statements that so closely resemble Bruton so doctrine is the same.
Facially incriminates

Question 21

Richard v. Marsh

Answer 21

held a redaction of the name of the co-D from confession so that the redacted confession only implicated the D trhough other factor, means no Bruton error

Question 22

US v. Edwards

Answer 22

E: confession of Edwards regarding the fire and Co-D’s clearly testimonial
TC: admit, with the replacement of D’s with pronouns
error: statement is facially incriminating
held: this was virtually identical to the suggested langauge in Gray so not facially incriminating and not in error.