Confrontation Clause Flashcards
What is the Confrontation Clause?
The Confrontation Clause of the Sixth Amendment provides that “in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.
6 steps to see if have Confrontation Clause problem,
1) Defendant?- Yes
2) Criminal Case?- Yes
3) Hearsay?- Yes
4) Testimonial?- Yes
5) Declarant- Witness unavailable?- Yes
6) Prior opportunity to Cross-Examine?- No
If answer like this then there is a Confrontation Clause Problem
What is the hardest part of the confrontation clause analysis?
Whether the hearsay statement is “testimonial” or “non-testimonial.”
Is there a Confrontation Clause problem if “Non-Testimonial”
NO. Must be Testimonial to have a confrontation clause problem.
Examples of Testimonial (Inadmissible)
1) a SOLEMN DECLARATION OR AFFIRMATION made to establish or prove some fact. Affidavits or “quasi-affidavits” (like the note in “Deliver After Death”) are good examples.
2) PRIOR TESTIMONY IN A TRIAL OR OTHER PROCEEDING. While such testimony is clearly “testimonial” look for cases in which the defendant has had prior opportunity to cross-examine the witness [such as a preliminary hearing or trial,] In such cases, a Confrontation Clause problem is avoided due to the “prior opportunity to cross-examine” grounds.
3) STATEMENTS MADE TO GOVERNMENT OFFICERS WITH AN “EYE TOWARDS” TRIAL AND-
- IN RELATED FASHION-STATEMENTS MADE TO LAW ENFORCEMENT DURING AN INTERROGATION UNDER CIRCUMSTANCES OBJECTIVELY INDICATING THE PRIMARY PURPOSE IS TO ESTABLISH PAST EVENTS RELEVANT TO LATER PROSECUTION.
Remember to apply the applicable Michigan v. Bryant factors (1) the existence and nature of an emergency, 2) the location of the interrogation, 3) the motives of both the declarant and interrogator(s), 4) and the interrogation’s formality. Also, consider the example of “testimonial” interrogation in Hammon. Note that a single continuous interrogation by government officers can be elicit both “non-testimonial” and “testimonial” statements,
4) Documents kept in the regular course of business “CREATED FOR THE ADMINISTRATION OF THE ENTITY’S AFFAIRS” and unrelated to the prosecution of a criminal defendant.
Examples of “Non-Testimonial” [Admissible]
1) Remarks that are “casual”, “overheard” or “offhand” and made to an “acquaintance.” Crawford did not provide concrete examples of such “remarks” in a sense, such remarks are defined as something “other” than solemn declarations, etc.
2) STATEMENTS IN FURTHERANCE OF A CONSPIRACY. Look for statements made while 2 or more people plot or execute a crime. Even if the declarant is unavailable at trial [likely because he has asserted a privilege not to testify] these statements pose NO Confrontation Clause problem.
Remember: Statements after a Conspiracy has ended (post-arrest) fall outside of this category.
3) STATEMENTS MADE DURING AN INTERROGATION UNDER CIRCUMSTANCES OBJECTIVELY INDICATING THE PRIMARY PURPOSE IS TO ENABLE THE POLICE TO RESPOND TO AN EMERGENCY.
- Remember to apply Michigan v. Bryant factors (1) the existence and nature of the emergency, 2) the location of the interrogation, 3) the motives of both the declarant and interrogator(s), 4) and the interrogation;s formaility. Also, consider the example of “non-testimonial” interrogation in Davis. Note that a single continuous interrogation by the government officers can be both “non-testimonial” and “testimonial” statements.
4) DOCUMENTS KEPT IN THE REGULAR COURSE OF BUSINESS “IF THE REGULARLY CONDUCTED BUSINESS ACTIVITY IS THE PRODUCTION OF EVIDENCE FOR USE AT TRIAL.”
Remember the BULLCOMING analysis: Look for reports produced, designed, and utilized for prosecution. Such documents require- in court testimony by the analyst who performed the test, participated in the performance of the test, [or at the very least] observed or supervised the test or confirmed the test results. An expert familiar with the testing process or equipment but uninvolved in the test is unacceptable.
Giles v. California
A criminal defendant forfeits his or her 6th Amendment right to Confrontation only if the Defendant’s wrongful conduct (or acquiescence to such conduct) caused by the witness’s unavailability and the defendant intended to prevent the witness’s trial testimony.
What is testimony?
Crawford:
-Testimony is “a solemn declaration or affirmation” made to “prove some fact.”
- An accuser who makes “a formal statement” to government officers “bears testimony.”
- Interrogations by law enforcement officers “fall squarely into [the] class [of testimonial hearsay.]”
Davis/ Hammond
-statements
- made when the circumstances objectively indicate that there is no emergency
- and that the PRIMARY PURPOSE OF THE INTERROGATION is to establish past events to FACILITATE LATER PROSECUTION
What is not “testimonial”
Crawford
- an “off-hand, overheard remark,”
- a “casual remark to an acquaintance”
Davis/ Hammon:
- statements
- made in the course of police interrogations
- under indicating that the PRIMARY PURPOSE OF INTERROGATION IS TO ENABLE POLICE TO MEET AN EMERGENCY
“On Going Emergency”
What Factors to look for?
In a
1) public
2) shooting where the
3) motive of the shooter is unknown-
the threat to public safety and to the police is NOT necessarily over just because the victim has been secured.
Police may be legitimately concerned about the threat posted by the shooter.
FACTORS:
- Analysis is objective and highly context-dependent
- look to statements and actions of BOTH the declarant and interrogator
- RELIABILITY counts: is it likely the declarant would lie under the circumstances?
Testimonial semi test
To work as testimonial a statement must have a PRIMARY PURPOSE of ESTABLISHING OR PROVING PAST ACTS potentially relevant to LATER PROSECUTION
Confrontation ad Reports
Reports will run afoul of the Confrontation Clause “if the regularly conducted business activity is the production of evidence for use at trial.”
The Confrontation Clause allows a defendant to cross the analyst involved in the preparation of forensic laboratory report used in his prosecution.
(must be the actual person who did the report)
Burton: Co-Defendants, Jointly Tried
- The risk that the jury will not follow the instruction is too great and the consequence of failure so vital to the defendant.
1) Severed Trials
2) Separate Juries
3) Bench Trial
(no problem if statements are not testimonial hearsay, or if maker testifies at trial)
