Pg 43

Question 1

What amendment is the confrontation clause associated with?

Answer 1

The sixth amendment

Question 2

What is the confrontation clause?

Answer 2

In all criminal prosecutions, the accused has the right to be confronted by the witness against him. This only applies when an out-of-court statement of a declarant that is not in court is used as substantive evidence against a criminal defendant.

When an out-of-court statement is used against a criminal defendant as evidence to get a conviction, the declarant doesn’t testify, so that raises a question about the defendant being denied the right to be confronted with the witness against him.

Question 3

Is the confrontation clause a hearsay rule?

Answer 3

No, it is a constitutional requirement that can be triggered when hearsay is offered into evidence

Question 4

If the confrontation clause is implicated, what has to happen?

Answer 4

It must be analyzed to figure out the admissibility of the out-of-court statement or document because this is the highest law of the land, so it can stop the information from coming in

Question 5

Before you can even get to a confrontation clause objection, what must first determine?

Answer 5

How to get around a hearsay objection through one of the many exceptions to hearsay. Once the hearsay objection can be gotten around, then ask if the confrontation clause is implicated by looking at the elements. Always do a hearsay analysis first, then move on to confrontation clause

Question 6

What is the procedure for analyzing a confrontation clause??

Answer 6

– ask if the statement is being used against a criminal defendant?
– ask if it is being used for the truth of the matter?
– ask if the declarant is not testifying in court?
** everything above this line determines whether the commerce clause was implicated, and below determines if it was violated**
If the answer to any of those is NO, then there’s no confrontation clause. If the answer to all was yes…. carry on

– ask if the statement was testimonial or not (aka: made considering prosecution)?
1. If it IS testimonial, then it is not admissible unless:
– the declarant is unavailable and the defendant had a prior opportunity to cross examine the declarant
2. If it is NOT testimonial, then it is admitted if it meets the firmly rooted hearsay exception, or the residual exception

Question 7

Does the confrontation clause apply to civil cases?

Answer 7

No, only to criminal cases

Question 8

What is involved in the element of the confrontation clause that requires that the hearsay be used against a criminal defendant?

Answer 8

The confrontation clause only applies when hearsay is used AGAINST a criminal defendant. It does not apply when hearsay is offered BY a criminal defendant. Important to always check who is offering the information

Question 9

Who all has the sixth amendment right to confront their accuser under the confrontation clause?

Answer 9

Only a criminal defendant, not a civil defendant, and not the government. So be careful for statements that are offered against the government, because the government does not have a sixth amendment right to confront its accuser

Question 10

What does it mean for the confrontation clause element that the statement must be offered for its truth?

Answer 10

It requires an out-of-court statement to be offered for its truth as substantive evidence of guilt. If it is used circumstantially for a non-hearsay purpose, then the commerce clause does not apply

Question 11

What does it mean for the element of the confrontation clause that the declarant doesn’t testify in court?

Answer 11

If the declarant does testify in court, then the defendant had the right to cross examine and confront the witness, so the CC does not apply

Question 12

What does it mean for the requirement that the evidence be testimonial in order for the confrontation clause to apply?

Answer 12

The statement must be made or obtained in anticipation for use as evidence to prosecute and try someone/made with an eye toward prosecution.

This includes: actual testimony from an earlier trial/grand jury proceedings/deposition, formal witness statements to the police, etc.

Question 13

If a statement is deemed to be testimonial under the confrontation clause, it cannot be admitted unless what?

Answer 13

These two things are met:
– the declarant is unavailable, not just absent, and
– the defendant must have had a prior opportunity to cross examine the declarant about the matter

Question 14

What kinds of things are considered not to be testimonial under the confrontation clause?

Answer 14

• Calling 911 for an emergency because the primary reason is to get help, not to prosecute
  – Making a statement to a lay person

Question 15

If a statement is deemed to be non-testimonial under the confrontation clause, what is the default?

Answer 15

That it is admissible if either of these two are met:
– firmly rooted hearsay exception: this means any exception from the FRE, OR
– has the equivalent circumstantial guarantees of trustworthiness: this is the same as the residual exception

Question 16

How are lab reports and related testimony treated under the confrontation clause?

Answer 16

If a suspect is arrested with white powder, the police send it to a crime lab and a technician analyzes it and says it is cocaine and then writes a report. The report is testimonial because it was prepared to secure a conviction. If no one that did the testing testifies, introducing the report would violate the CC. If the lab tech that did the testing testifies, there is no CC problem or hearsay problem. The CC is satisfied when an expert testifies based on a lab report, because the opposing party gets the opportunity to cross examine the expert

Question 17

Generally speaking, evidence that violates the hearsay rule also violates what?

Answer 17

The commerce clause. And evidence that meets a hearsay exception often also satisfies the commerce clause

Question 18

What is the difference between the way that California and the FRE treat the confrontation clause?

Answer 18

California does not have a residual exception, so in California if you’re analyzing a commerce clause objection, if it doesn’t fit a hearsay exception, it doesn’t come in

Question 19

If a defendant is prosecuted for murder and at trial the prosecution introduces a lab report that found that the defendant’s DNA was at the crime scene. The prosecutor says this fits under an official records exception. Would that be enough to come in?

Answer 19

No, because this is a report being admitted against a criminal defendant, offered for its truth, and the declarant didn’t testify in court. That means that the confrontation clause is implicated. A lab report that tries to prove the defendant is a murder is testimonial, so unless someone that generated the report or did the testing testifies, that violates the confrontation clause

Question 20

If a plaintiff sues a D for negligence from a car accident, and at trial, the plaintiff asked a police officer what the witness said at the scene. The cop says the witness ran up and shouted, “the blue car ran the red!“ If a confrontation clause objection is made, what would happen?

Answer 20

This is an excited utterance, but the statement is used against the defendant for its truth and the declarant is not in court to cross examine - however, the confrontation clause is not implicated because this is a civil suit. If this was a criminal case, then the confrontation clause would be implicated

Question 21

In a criminal prosecution for reckless driving, the prosecution calls a witness to testify to her excited utterance to a police officer. Is the confrontation clause implicated?

Answer 21

No, because even though the statement is used against a criminal defendant for its truth, the declarant is in court, so that gives the D an opportunity to be confronted with the witness against him

Question 22

In a criminal prosecution, if the defendant testifies about an excited utterance of the witness saying that the defendant did have the green light, would the confrontation clause be implicated?

Answer 22

No because even though this is an out-of-court statement offered for its truth, and the witness is not in court, it is being used BY a criminal defendant, not AGAINST him

Question 23

In a reckless driving prosecution, if the prosecutor calls a police officer to testify to a witness’ excited utterance that the defendant’s car ran the red, would that implicate or violate the confrontation clause?

Answer 23

The statement is being used for its truth against a criminal defendant who is not in court, so the confrontation clause is implicated.

The cop is trying to ensure safety and if anyone committed a crime, he will collect evidence. But probably the witness was excitedly uttering this without thinking about what the cop would do with the information, so this is probably not testimonial, and it falls within the hearsay exception of excited utterance, so no confrontation clause violation

Question 24

In a criminal prosecution for drugs, during the examination of a cop, the prosecution shows a copy of the lab report that said the powder taken from the defendant was cocaine. The prosecutor asked the cop if she recognizes the report from her investigation and the cop says yes. Is the confrontation clause implicated and is it violated?

Answer 24

The confrontation clause is implicated because the report is an out-of-court statement by a labtech that is used for its truth to secure a conviction against a criminal defendant and the tech is not in court.

The statement is generated with an eye toward prosecution because the defence wouldn’t get an opportunity to cross examine the tech or anyone involved in the testing, so the confrontation clause would be violated

Question 25

If a defendant is prosecuted for murder, and at trial the prosecution calls a cop who testifies that the victim spoke to him on the ground with a knife in her chest and said, “D must pay for what he did to me!“ If that statement is used against a criminal defendant as evidence of his guilt, and the declarant is not in court because she is dead, is the confrontation clause implicated and is it violated?

Answer 25

The confrontation clause is implicated.

The big question is whether this is testimonial, which is tricky because we don’t know what the victim wanted. Did she want the defendant to be prosecuted, just apprehended, killed, known as her attacker? But because this was spontaneous and informal, it probably was not testimony. So then it meets a firmly rooted hearsay exception for trustworthiness - dying declaration or excited utterance and thus any objection would be overruled

Question 26

If a D is prosecuted for attempted murder, and at trial the prosecution calls a victim who testifies that while laying on the ground with a knife in her chest she said “defendant must pay for what he did to me!“ Would the confrontation clause be implicated or violated?

Answer 26

It would not even be implicated because the declarant is in court to testify, so the defendant has a right to confront his accuser

Question 27

Is there a confrontation clause violation for statements that are made to a police dispatcher during a 911 call?

Answer 27

No, this is not considered to be testimonial because the primary purpose of the call is the physical safety of someone or to address an ongoing crisis, not prosecution. It likely counts as an excited utterance or then-existing state, which counts as a firmly rooted hearsay exception