Confrontation Clause Issues

Question 1

The Bruton Problem

Answer 1

A defendant may be protected from the incriminatory effects of evidence that is not technically offered against him and that would be inadmissible hearsay if it were so offered (confrontation clause problem).

Potential solutions:
1. Prosecutor forgoes use of the statement
2. Limiting instruction and redacting
3. Sever trials
4. Two juries
5. Redact defendant’s name from statement
6. Harmless error

Question 2

The Crawford Problem

Answer 2

Confrontation Clause Problem
Crawford v. WA: “Testimonial” hearsay evidence is inadmissible against a defendant in a criminal case; non-testimonial evidence is not banned.

Testimonial statements may still be admissible if:
1. Declarant appears for trial and is subject to cross
2. Declarant is unavailable and defendent had prior opportunity to cross
3. Defendat forefits right by wrongdoing [804(b)(6)]
4. Possible dying declarants [Rule 804(b)(2)]
5. It is admissible against the defendant as non-hearsay.

Question 3

Confrontation Clause Categories

Answer 3

1. The Bruton Problem
2. The Crawford Problem
3. Confrontation Clause may overcome severe limitations on impeachment and cross
4. Defendant has confrontation clause right to be present at trial (though it can be waived)
5. Defendant has confrontation clause right to have victims be present at trial, but that right is not unlimited.