Hearsay and the Sixth Amendment’s Confrontational Clause Flashcards
Confrontation Clause
In all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him
Core Protections of the Confrontation Clause
- In-person testimony
- Given under oath
- Subject to cross-examination
- Where the jury can observe the witness’s demeanor
Ohio v. Roberts
1980
Facts
The defendant was charged with forgery of a check and possession of stolen credit cards. He claimed the victim’s daughter gave him permission to use them. The daughter denied it. She was subpoenaed to appear at court but didn’t show up, so the trial court allowed the prosecutor to admit the transcript of her preliminary hearing testimony and convicted the defendant.
Ohio v. Roberts
1980
Procedural History
The trial court admitted the transcript and convicted Roberts. The Supreme Court of Ohio reversed, saying the preliminary hearing testimony violated the Confrontation Clause. In comformance with the Founders’ preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity. The prosecution must either
- Produce the declarant whose statement it wishes to use against the defendant or
- Demonstrate the unavailability of the declarant
To be admissible, the hearsay statement must be reliable. Reliability can be inferred where
- The statement falls within a firmly rooted hearsay exception or
- There are particularized guarantees of trustworthiness
Ohio v. Roberts
1980
SCOTUS’s Ruling
SCOTUS reversed and remanded the case because the defendant had an opportunity to cross-examine the daughter at the preliminary hearing and the prosecutor showed the declarant was unavailable
Crawford v. Washington
2004
Facts and Procedural History
Michael Crawford stabbed a man who allegedly tried to rape his wife, Sylvia. They were both interrogated by the police. Sylvia refused to testify at trial, claiming Washington’s marital privilege, which bars a spouse from testifying without the other spouse’s consent. But the privilege didn’t cover out-of-court statements admissible under a hearsay exception, so the state introduced Sylvia’s recorded statement under the against penal interest exception and the lower court admitted it. The Washington Supreme Court affirmed.
Crawford v. Washington
2004
Two Views of Witness
Roberts’ reliability approach was not consistent with the Sixth Amendment’s history or text. Reading the text of the Sixth Amendment could result in two interpretations. Read from a prosecutor’s view, “witness” is only the person testifying in court currently, so there is only a need to cross-examine the witness, not the declarant. From the defendant’s view, “witness” is anyone who provides evidence, so the defendant has a right to cross-examine all declarants
Crawford v. Washington
2004
SCOTUS’s Ruling on Testimonial Statements
SCOTUS said a witness is someone who provides testimony. Testimony is a “solemn declaration or affirmation made for the purpose of establishing or proving some fact.” So the Sixth Amendment guarantees the right to confront declarant who make testimonial statements.
Crawford v. Washington
2004
Testimonial Statement
A testimonial statement is “any other pre-trial statement that the declarant would reasonably expect to be used prosecutorially.” Some examples are affidavits and depositions, prior in-court testimony, and formal custodial examinations
Crawford v. Washington
2004
Testimonial Statement Outcomes
- If the prosecution offers a testimonial statement, the declarant must testify in person, under oath, be subject to cross-examination by the defendant, and the testimony must be given in front of a jury.
- If the declarant is unavailable, then the testimonial statement can still be used if the defendant has been given a prior opportunity for cross-examination
- If neither of these conditions are met, the testimonial statement can still be used if the prosecutor establishes one of the three framing-era exceptions
- Dying declarations
- Forfeiture
- Opposing party statement
Current SCOTUS Checklist for Hearsay and the Confrontation Clause
- Is the statement being admitted in a criminal case?
- If not, the Confrontation Clause doesn’t apply.
- If yes, is it being offered against the defendant?
- If not, the Confrontation Clause doesn’t apply.
- If yes, is it hearsay?
- If not, the Confrontation Clause doesn’t apply.
- If yes, is it testimonial?
- If not, the Confrontation Clause doesn’t apply.
- If yes, is the declarant available to testify?
- If yes, the declarant must testify.
- If no, was the defendant provided a prior opportunity to cross-examine the declarant?
- If yes, the hearsay statement can be used.
- If not, does a framing-era exception apply?
- If yes, the hearsay statement can be used
- If not, the Confrontation Clause prohibits the use of the hearsay statement. If the statement was used at trial, a new trial is required unless it was harmless error
Types of Testimonial Statements
- Formal statements to the police
- Informal statements to the police
- Statements to private parties
- Lab reports
Crawford v. Washington
2004
SCOTUS’s Ruling on Case
Formal Statements to the Police
SCOTUS said Sylvia’s statements were testimonial because
- She made them to the police
- Her statements were elicited by the police during their investigation
- Her responses were often to leading questions by the police officers
Because Sylvia was unavailable and Michael didn’t have an opportunity to cross-examine her, her statement was inadmissible
Davis v. Washington
2004
Facts
Informal Statements to the Police
The defendant’s former girlfriend called 911 saying the defendant had assaulted her and fled the scene. The former girlfriend answered the 911 operator’s questions frantically. The defendant was charged with felony in violation of a domestic no-contact order. The former girlfriend did not testify so the trial court let the prosecution enter the recording of the 911 call into evidence.
Davis v. Washington
2004
SCOTUS Ruling
Informal Statements to the Police
- SCOTUS said statements in response to police interrogation are nontestimonial when the primary purpose of the interrogation is to enable the police to meet an on-going emergency.
- The former girlfriend’s statements were nontestimonial. She was speaking of the events as they were actually happening and was facing an on-going emergency – her frantic answers were provided in an environment that was not safe.
- Moreover, the statements elicited were necessary to enable the police to resolve the present emergency rather than simply to learn what happened.
- The statements were admissible.
Hammon v. Indiana
2006
Facts
Informal Statements to the Police
When the police responded to a reported domestic disturbance at the home of Amy and Hershel Hammon, Amy said nothing was going on but let them in. One officer kept Hershel in the kitchen while the other one interviewed Amy in another room and had her complete and sign a battery affidavit.
Hammon v. Indiana
2006
SCOTUS’s Ruling
Informal Statements to the Police
SCOTUS said Amy’s affidavit was testimonial because
- The interrogation was part of an investigation into possible criminal past conduct
- There was no emergency in progress. Amy told the police when they arrived that things were fine, and the officer questioning her was seeking to determine not what was happening but what had happened.
- The affidavit was not admissible.
Michigan v. Bryant
2011
Facts
Informal Statements to the Police
Detroit police were dispatched to a gas station parking lot and found Anthony Covington mortally wounded. Covington told them that he had been shot by Richard Bryant outside Bryant’s house and had driven to the lot. Covington died and at the murder trial the officers testified about what Covington said.
Hammon v. Indiana
2006
Procedural History
Informal Statements to the Police
The lower court admitted the affidavit. The Indiana Supreme Court concluded that, although Amy’s affidavit was testimonial and wrongly admitted, the error was harmless beyond a reasonable doubt because the affidavit was cumulative of the officer’s testimony, which was not testimonial and was properly admitted
Michigan v. Bryant
2011
Procedural History
Informal Statements to the Police
The trial court admitted the statement under the excited utterance exception. The Michigan Supreme Court reversed saying the statement was testimonial and not in response to an emergency.
Michigan v. Bryant
2011
SCOTUS’s Reasoning
Informal Statements to the Police
SCOTUS said
- An assessment of whether there was an ongoing emergency cannot focus on whether the threat against the victim is gone because the first responders and the public might still be in danger
- A conversation which begins with the goal of determining the need for emergency assistance can evolve into a conversation eliciting testimonial statements. The trial court must determine whether such a transition took place and exclude the portion of the statements that have become testimonial.
- There may be other circumstances when a statement is not procured with the primary purpose of creating an out-of-court substitute for trial testimony. In making the primary purpose determination, standard rules of hearsay, designed to identify some statements as reliable, will be relevant.
Michigan v. Bryant
2011
SCOTUS’s Ruling
Informal Statements to the Police
SCOTUS said Covington’s statements were not testimonial because the primary purpose was to enable the police to meet an ongoing emergency and thus were admissible.
Michigan v. Bryant
2011
Dissent
Informal Statements to the Police
The focus on reliability was rejected in Crawford “as an unworkable standard unmoored from the text and historical roots of the Confrontation Clause.” While the Court “attempts to fit its resurrected interest in reliability into the Crawford framework, the result is incoherent.”
The police’s purpose for question Covington was not relevant. Covington’s purpose for giving them the information was so that the police could apprehend and prosecute Bryant
Ohio v. Clark
2015
Facts
Statements to Private Parties
The defendant sent his girlfriend away to be a prostitute and told her he’s take care of her two young children. The next day teachers discovered signs of abuse on her three-year-old son, L.P., and the boy identified Clark as his abuser. L.P. did not testify because he was incompetent under Ohio law.
Ohio v. Clark
2015
Procedural History
Statements to Private Parties
The trial court admitted L.P.’s statements to the teachers under Ohio law, which allows an admission of reliable hearsay by child abuse victims, finding the statements had sufficient guarantees of trustworthiness. The Ohio Supreme Court affirmed.
Ohio v. Clark
2015
SCOTUS’s Ruling
Statements to Private Parties
SCOTUS said the statements were not testimonial and thus admissible because
- The statements were not made with the primary purpose of creating evidence for prosecution
- The statements occurred in the context of an ongoing emergency involving suspected child abuse and were thus admissible
Melendez-Diaz v. Massachusetts
2009
The police arrested the defendant and found white powder in his car. At the state-court trial, the prosecution introduced certificates of a state laboratory analyst stating that the powder was cocaine. As required by Massachusetts law, the certificates were notarized and submitted as prima facie evidence of what they asserted. The defendant objected, saying that Crawford required the analyst to testify. The trial court disagreed, admitted the evidence and convicted the defendant. The Massachusetts Appeals Court affirmed. SCOTUS said the certificate was testimonial so the analyst had to testify.
Bullcoming v. New Mexico
2011
Lab Reports
- The defendant was charged with driving while intoxicated. The principle evidence against him was a forensic lab report certifying that his blood-alcohol concentration was well above the threshold for aggravated DWI.
- The defendant’s blood sample was tested by a forensic analyst named Caylor who completed, signed and certified the report. The prosecutor didn’t call Caylor to testify or say he was unavailable. The record only showed that Caylor was on unpaid leave for an unspecified reason. Instead, the prosecutor called another forensic analyst, Razatos, to validate the report.
- While Razatos was familiar with the testing device used to analyze the defendant’s blood and with the lab’s testing procedures, he had neither participated in nor observed the test on the defendant’s blood
- SCOTUS said the certificate was testimonial and the defendant had the right to confront Caylor
Williams v. Illinois
2012
Facts
Lab Reports
The defendant was charged with rape. Lambatos, a forensic specialist at the Illinois State Police Lab, testified that she matched a DNA profile produced by an outside lab, Cellmark, to a profile the state lab produced using the defendant’s blood. She testified that Cellmark was an accredited lab and that business records showed that vaginal swabs from the victim were sent to Cellmark and returned. Lambatos offered no other statement for the purpose of identifying the sample used for Cellmark’s profile or establishing how Cellmark handled or tested the sample. She also did not vouch for the accuracy of Cellmark’s profile.
Williams v. Illinois
2012
Procedural History
Lab Reports
The trial court admitted the evidence and found the defendant guilty. The appellate court affirmed. Since the report was never admitted into evidence, the Confrontation Clause wasn’t violated
Williams v. Illinois
2012
SCOTUS’s Ruling
Lab Reports
In a 4-1-4 split, SCOTUS affirmed and said the report was not testimonial and so admissible.
- Justice Thomas concurred because the statements lacked formality and solemnity
- The plurality advanced a novel definition for testimonial – it does not have to include statements made before there’s an identified subject
- The dissent would have held that the statement met the Crawford definition of testimonial.
