CONFRONTATION CLAUSE

Question 1

CONFRONTATION CLAUSE

Answer 1

1) Confrontation Clause

2) Co-Defendant Statements

Question 2

Confrontation Clause

Answer 2

In CRIMINAL cases, an otherwise admissible hearsay statement offered against a Defendant may be excluded under the 6th Amendment Confrontation Clause.

An hearsay statement offered against a Defendant will be excluded if:

(1) The declarant is currently UNAVAILABLE
(2) Defendant had no prior opportunity to CROSS-EXAMINE the declarant about the statement at the time it was made; AND
(3) The statement is TESTIMONIAL

A testimonial statement is one that has GOVERNMENTAL INVOLVEMENT and the FORMALITY and SOLEMNITY of TESTIMONY AT TRIAL. If the declarant makes the statement under such circumstances that would lead a REASONABLE PERSON to believe that statement would be used at trial then the statement is testimonial.

Testimonial statements include:

(1) Prior statements made during court proceedings
(2) Statements made in furtherance of a police investigation i.e. a statement aimed a producing evidence potentially relevant to a later prosecution

EXCEPTION: Statements made to police during an ONGOING emergency are non-testimonial. They can be admitted without violating the Confrontation Clause.

Question 3

Co-Defendant Statements

Answer 3

The Confrontation Clause bars admission of a hearsay statement by a non-testifying co-Defendant if the statement expressly implicates another Defendant.

EXCEPTIONS: A co-Defendant’s hearsay statement is admissible if:
(1) The declarant co-Defendant testifies and is subject to CROSS-EXAM; OR
(2) Portions of the co-Defendant’s testimony referring tot the non-declarant Defendant are REDACTED; OR
» Reaction is not effective unless it clearly makes the non
declarant co-Defendant’s identity anonymous
(3) These statement is used to REBUT a charge of a COERCED confession