Constitutional Issues

Question 1

Right of Confrontation

Answer 1

The Confrontation Clause of the 6th amendment guarantees a criminal defendant the right to be confronted with the witnesses testifying against him. To protect a criminal defendant’s rights, SCOTUS has limited the ways in which an out-of-court statement may be used against criminal defendants.

Question 2

Crawford Doctrine

Answer 2

Hearsay evidence does not violate the right to confrontation if the hearsay statement is non-testimonial in nature. If it is testimonial in nature, then its admission will violate the right of confrontation, unless (1) the declarant is available, or (2) the criminal Δ had a previous opportunity to cross-x the declarant about the hearsay statement.

Question 3

Confrontation Clause Applies Only When:

Answer 3

(1) We are in a criminal case,

(2) Hearsay offered against the Δ,

(3) The declarant is not testifying,

(4) An exception applies, and

(5) The hearsay is testimonial.
i. A statement is testimonial if its primary purpose is to prove past events for use in a criminal investigation or prosecution.

Testimonial:
-Declaration made for the purpose of establishing or proving some fact
-Prior testimony at a preliminary hearing, before a GJ, or at a formal trial
-Statements procured with the “involvement of gov officers…with an eye toward trial.”
-Statements made during police interrogation, viewed objectively to have no ongoing emergency, and primary purpose is to prove events for criminal prosecution.
-A document created for evidentiary purpose made in the aid of police investigation.

Non-Testimonial:
-Casual remarks
-Off-hand, overheard comments
-Statements in the further of conspiracy (co-conspirator’s statements)
-Some business records (depends on what the business record is being made for and by whom)
-Statements made in the court of police interrogation for the primary purpose to meet an ongoing emergency.

Question 4

Confrontation Clause is satisfied when:

Answer 4

• The statement is not offered for the truth (aka not hearsay)
• If the declarant is present and testifies at trial and responds to questions about earlier hearsay statements.
• If the prosecution has made every effort to produce the declarant, but declarant is unavailable, and the Δ had a past chance to cross-x the declarant about the out of court statement.
• The Δ forfeited the confrontation right by wrongdoing intended to prevent the declarant from testifying.
• If the statement was a dying declaration.
• If the statement was not “testimonial”
• If accused had a chance to cross-x now-unavailable witness at an earlier trial and on the same issues.