Confrontation Clause

Question 1

True/False - The confrontation clause requires that the trial court determine whether a statement made by an unavailable declarant in a criminal case is either firmly rooted or possess particularized guarantees of trustworthiness

Answer 1

False

Question 2

True/False - The confrontation clause precludes admissibility of all hearsay statements made by an unavailable declarant in a criminal case.

Answer 2

False

Question 3

T/F - A statement is non-testimonial if made on a 911 call seeking emergency assistance in connection with an ongoing event?

Answer 3

True

Question 4

T/F - A Statement is testimonial under the Confrontation Clause whenever it is made to a police officer, other law enforcement personnel, or a judicial officer?

Answer 4

False (it depends why the statement was made)

Question 5

T/F - Reliability plays no part in the analysis of admission of statements under the Confrontation Clause?

Answer 5

False

Question 6

T/F - A statement is testimonial under the Confrontation Clause whenever circumstances would lead a witness reasonably to believe that the statement would be available for use at a later trial

Answer 6

False

Question 7

T/F - A statement made casually to a friend is a non-testimonial statement, the admissibility of which is not affected by the Confrontation Clause

Answer 7

True

Question 8

T/F - Testimonial statements are inadmissible in a criminal case if the declarant is not available for cross examination at the trial and if no prior opportunity for cross-examination has been provided to the defendant (not dying declaration)

Answer 8

True

Question 9

What is the test for when a statement made to the police is testimonial or non-testimonial under the Confrontation Clause?

Answer 9

Primary Purpose Test (Davis) 
Factors for likely testimonial: 				
□ When they describe past events
□ Not an ongoing emergency (Hammond)
□ Statement needed to learn what happened not to resolve an emergency (Hammond)
□ Obvious substitute for live testimony
□ Indicia of formality (more formal more likely testimonial): (see factors in Bryant) : Calm circumstances out of danger, taken to the stationhouse, series of questions by the examiner
□ Firearms
□ Domestic Violence

Question 10

What are the general limits to the CC?

Answer 10

Only in criminal cases, only applies against the defendant.

Question 11

What is the CC Analysis

Answer 11

1. ) Does the CC apply (R: must be against the defendant, in a criminal case, declarant must not be present)
2. ) Testimonial or non-testimonial? (primary purpose test)
3. ) If testimonial, must have had prior opportunity to cross; if non-testimonial, statement is in unless it violates hearsay.
4. ) Is there a Bruton problem?

Question 12

What are the factors for testimonial statements

Answer 12

• statements made during a grand jury proceeding, pre trial hearing, or previous trial. (Crawford)
• Statements that describe past events
• Not an ongoing emergency (Hammond)
• statements for police to learn what happened with an eye toward trial, non-emergency. (Crawford)
• Obvious substitute for live testimony
• Indicia of formality
• Firearms (Bryant)
• Domestic Violence (Davis)

Question 13

When does the CC not apply?

Answer 13

• statements not offered for the truth;
• when the declarant appears for cross examination at trial (CA v. Green)
• Declarant has previously testified and previously been subject to cross. (CA v. Green)
• ∆ has forfeited right by forfeiture by wrong doing (Gray; Giles v. CA)
• Test for forfeiture by wrongdoing (Gray) p. 617
• Dying declarations (not squarely addressed but Crawford indicates it is
• Non testimonial statement do not have CC protection

Question 14

What are the factors for non-testimonial statements

Answer 14

• Casual Remarks to acquaintance (Crawford/Davis)
• Statements made in furtherance of conspiracy (Crawford)
• business records (Crawford)
• statements to police where primary purpose is to enable police to respond to an ongoing emergency (Davis/Bryant)

Question 15

Crawford v. Washington

Answer 15

Def. stabbed victim and wife was witness. Def. claimed self defense. Evidence in question is wife’s statement to the police that victim did not have a weapon. Held that testimonial statements are not allowed if no opp. for cross. (not allowed in this case because wife wouldn’t take stand (no op for cross) asserting spousal testimony).

Question 16

Analysis to determine if there is a Bruton issue?

Answer 16

No Bruton issue if:

1) Statement directly admissible against the def. (usually co-conspirator)
2) Confessing def. takes stand and is subject to cross
3) Bench Trial
4) Co-def. statement is non-testimonial

IF non of these apply then go to mitigation analysis .

Question 17

How to mitigate if there is a Bruton issue?

Answer 17

1. ) Bench Trial
2. ) Separate Trials (Bruton)
3. ) Separate Juries
4. ) Edit the confession

Question 18

Bruton Linkage cases

Answer 18

Gray v. Maryland: Redaction of def.2’s name in def.1’s confession was not enough to resolve Bruton error.

Richardson: Redactions don’t implicate the defendant. Rather, another witness did through his statements. Therefore, Bruton error resolved.

Question 19

Michigan v. Bryant

Answer 19

Police arrive at scene and find victim shot. Statements by victim to police were not testimonial b/c asking general questions, emergency, asking about weapon, could be multiple victims.

Question 20

Davis v. Washington

Answer 20

Non-Testimonial- b/c intended to establish ongoing facts of emergency. Issue of the 911 call was to ID perp.

Question 21

What is the primary purpose test and what case is it from?

Answer 21

(Bryant quoting Davis) - statements are non-testimonial if the primary purpose is to enable police to respond to an ongoing emergency

-statements are testimonial if there is no such emergency.

Question 22

Hammon v. Indiana

Answer 22

TESTIMONIAL - b/c call happened after assault, after emergency calmed