Hearsay and the Sixth Amendment’s Confrontational Clause

Question 1

Confrontation Clause

Answer 1

In all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him

Question 2

Core Protections of the Confrontation Clause

Answer 2

• In-person testimony
• Given under oath
• Subject to cross-examination
• Where the jury can observe the witness’s demeanor

Question 3

Ohio v. Roberts

1980

Facts

Answer 3

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.

Question 4

Ohio v. Roberts

1980

Procedural History

Answer 4

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

Question 5

Ohio v. Roberts

1980

SCOTUS’s Ruling

Answer 5

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

Question 6

Crawford v. Washington

2004

Facts and Procedural History

Answer 6

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.

Question 7

Crawford v. Washington

2004

Two Views of Witness

Answer 7

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

Question 8

Crawford v. Washington

2004

SCOTUS’s Ruling on Testimonial Statements

Answer 8

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.

Question 9

Crawford v. Washington

2004

Testimonial Statement

Answer 9

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

Question 10

Crawford v. Washington

2004

Testimonial Statement Outcomes

Answer 10

• 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

Question 11

Current SCOTUS Checklist for Hearsay and the Confrontation Clause

Answer 11

1. Is the statement being admitted in a criminal case?
   
   1. If not, the Confrontation Clause doesn’t apply.
2. If yes, is it being offered against the defendant?
   
   1. If not, the Confrontation Clause doesn’t apply.
3. If yes, is it hearsay?
   
   1. If not, the Confrontation Clause doesn’t apply.
4. If yes, is it testimonial?
   
   1. If not, the Confrontation Clause doesn’t apply.
5. If yes, is the declarant available to testify?
   
   1. If yes, the declarant must testify.
6. If no, was the defendant provided a prior opportunity to cross-examine the declarant?
   
   1. If yes, the hearsay statement can be used.
7. If not, does a framing-era exception apply?
   
   1. If yes, the hearsay statement can be used
8. 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

Question 12

Types of Testimonial Statements

Answer 12

• Formal statements to the police
• Informal statements to the police
• Statements to private parties
• Lab reports

Question 13

Crawford v. Washington

2004

SCOTUS’s Ruling on Case

Formal Statements to the Police

Answer 13

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

Question 14

Davis v. Washington

2004

Facts

Informal Statements to the Police

Answer 14

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.

Question 15

Davis v. Washington

2004

SCOTUS Ruling

Informal Statements to the Police

Answer 15

• 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.

Question 16

Hammon v. Indiana

2006

Facts

Informal Statements to the Police

Answer 16

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.

Question 17

Hammon v. Indiana

2006

SCOTUS’s Ruling

Informal Statements to the Police

Answer 17

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.

Question 18

Michigan v. Bryant

2011

Facts

Informal Statements to the Police

Answer 18

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.

Question 19

Hammon v. Indiana

2006

Procedural History

Informal Statements to the Police

Answer 19

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

Question 20

Michigan v. Bryant

2011

Procedural History

Informal Statements to the Police

Answer 20

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.

Question 21

Michigan v. Bryant

2011

SCOTUS’s Reasoning

Informal Statements to the Police

Answer 21

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.

Question 22

Michigan v. Bryant

2011

SCOTUS’s Ruling

Informal Statements to the Police

Answer 22

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.

Question 23

Michigan v. Bryant

2011

Dissent

Informal Statements to the Police

Answer 23

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

Question 24

Ohio v. Clark

2015

Facts

Statements to Private Parties

Answer 24

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.

Question 25

Ohio v. Clark

2015

Procedural History

Statements to Private Parties

Answer 25

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.

Question 26

Ohio v. Clark

2015

SCOTUS’s Ruling

Statements to Private Parties

Answer 26

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

Question 27

Melendez-Diaz v. Massachusetts

2009

Answer 27

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.

Question 28

Bullcoming v. New Mexico

2011

Lab Reports

Answer 28

• 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

Question 29

Williams v. Illinois

2012

Facts

Lab Reports

Answer 29

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.

Question 30

Williams v. Illinois

2012

Procedural History

Lab Reports

Answer 30

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

Question 31

Williams v. Illinois

2012

SCOTUS’s Ruling

Lab Reports

Answer 31

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.