Confrontation Clause Flashcards
What are the Three Basics of the Confrontation Clause?
1) The confrontation clause only applies in criminal prosecutions;
2) The confrontation clause only arises when the witness-declarant is unavailable;
3) Evidence must survive both the confrontation clause and the rule against hearsay to be admissible in court.
What is the proposition that can be derived from the Green and Mattox cases in regards to the confrontation clause?
That the confrontation clause will only arise in cases in which the witness-declarant is unavailable and the defendant has had no prior opportunity to cross-examine.
What is the main point of the Crawford case in regards to the Confrontation Clause?
Where testimonial evidence is at issue, the Sixth Amendment demands that the common required unavailability and a prior opportunity for cross-examination.
What are the requirements of the confrontation clause?
1) Defendant
2) in a criminal case;
3) hearsay
4) testimonial
5) declarant-witness unavailable;
6) No prior opportunity to cross examine
What is non-testimonial (Prior to davis and hammon)?
Casual and offhanded remarks and statements made during and in furtherance of a conspiracy.
What is testimonial (prior to davis and hammon)?
Interrogations by police are always testimonial, but not all statements simply made to the police are testimonial.
What is non-testimonial (post davis and hammon)?
Statements made in the course of police interrogations under circumstances indicating that the primary purpose of the interrogation is to enable the police to meet an emergency.
What is testimonial (post davis and hammon)?
Statements made when the circumstances objectively indicate there is no emergency and that the primary purpose of the interrogation is the establish past events to facilitate later prosecution.
What does Michigan v. Bryant state about when an emergency exists?
This is a highly context dependent analysis.
An “ongoing emergency” - In a public shooting where the motive of the shooter is unknown, the threat to public safety and the police is not necessarily over just because the victim was secured. Police may be legitimately concerned about the threat.
What additional factors must be considered when determining the primary purpose of the interrogation to determine if it testimonial or not under Bryant?
Factors to consider:
1) Analysis is objective and highly context dependent.
2) Look to statements and actions of both the declarant and the interrogator.
3) Is the declarant reliable?
What is required for a statement to be testimonial?
To rank as testimonial, a statement must have the primary purpose of establishing or proving past acts potentially relevant to later prosecution.
What Forfeiture by Wrongdoing?
Forfeiture of confrontation rights by wrongdoing requires a showing by the government by a preponderance of the evidence that the defendant engaged in conduct designed to prevent the witness from testifying.
What is the rule regarding Confrontation Clause and records from Bullcoming?
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 analysis involved in the preparation of forensic lab reports used by the prosecution.
What is the rule regarding the confrontation clause found in Bruton regarding co-conspirators?
An out-of-court admission made by the accomplice who is jointly tried with the defendant cannot be used unless the trials are separated because it could prejudice the jury against the co-conspirator who did not make a statement.
