6th Amendment - Confrontation Clause
- “In all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him”
Confrontation Clause and Hearsay at Trial
- only applies in criminal cases (does NOT apply in civil)
- only protects the criminal DEFENDANT (does not protect the prosecution at all)
- also applies in state criminal prosecutions, through the 14th Amendment
- def can always decide not to cross-examine, but must have the opportunity (cannot later argue Confrontation Clause issue if you waive your right to cross-examine)
- if the declarant shows up later at trial, it gets rid of the Confrontation Clause issue (nullifies the problem)
Confrontation Clause and Appellate Review
- subject to a different standard of review than ordinary evidence errors (defendant usually needs to prove affected a substantial right)
- vs. if Confrontation Clause violation, reversal unless prosecution can show the error was harmless beyond a reasonable doubt
- burden gets shifted to prosecution, + standard becomes harmless beyond a reasonable doubt
- SCOTUS also more wary of limiting instructions with Confrontation Clause issues
Ohio v. Roberts
- old standard for Confrontation Clause, SCOTUS 1980
- SCOTUS threw out in 2004 with Crawford
- used to be hearsay violates Confrontation Clause unless “indicia of reliability” (either within firmly rooted hearsay exception or particular guarantee of trustworthiness even if it doesn’t fit)
Crawford v. Washington
- SCOTUS, 2004
- argues Conf Cl directed at civil law mode of crim pro’s use of ex parte examinations against the accused
- sets out new standard - Conf Cl issue if the out-of-court statement is “testimonial” + def does not have opportunity to cross-examine
- exception for if witness was unavailable to testify and there was a previous opportunity to cross-examine (ex: if there’s a second trial, you can use the witness’s statements from first trial w/o Conf Cl issue)
Crawford and Hearsay
- post-Crawford, there’s a new disconnect between Conf Cl and hearsay - need to make sure you address both if you’re the defense counsel (evidence can violate one without the other)
Crawford - Questions to Determine Conf Cl
a) Is the hearsay “testimonial”?
b) Did the defendant have the opportunity to cross-examine the declarant at trial?
c) Or, if declarant was unavailable at trial, was there a previous opportunity for defendant to cross-examine the declarant?
d) Not being used to establish the truth of the matter asserted?
e) Forfeiture by wrongdoing?
f) Dying declaration exception?
Crawford - Core Ex’s of Testimonial Statements
CORE EX’s - prior testimony at a preliminary hearing, before a grand jury, or at a former trial
- police interrogations
Additional Possibilities Noted
- affidavits
- custodial examinations
- pretrial statements that declarants would reasonably expect to be used prosecutorially
- depositions
- confessions
- statements taken by police officers in the course of an interrogation
- “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial”
Forfeiture for Wrongdoing
- if declarant can’t be confronted because def made sure the declarant wouldn’t be there, then the prosecutors can use the statement without worrying re Confrontation Clause
Dying Declarations
- the dying declaration hearsay exception as recognized under common law is an exception to the Confrontation Clause
- rationale is that the founders must have known about this + intended for it to apply
What happens when hearsay not testimonial?
- no Confrontation Clause issue
- concept that most hearsay is not testimonial + will therefore never raise a Confrontation Clause issue
- Confrontation Clause really comes into play only if the hearsay is in essence a substitute for trial testimony (ie. statement made for purpose of providing testimony)
Who decides testimonial?
- judge decides whether statement offered for a testimonial purpose under 104(a)
What is the test for testimonial?
- primary purpose test - was the primary purpose of the statement to create evidence for a trial?
Davis v. Washington
- 911 call statements made to operator during and shortly after attack - would be hearsay, but no Confrontation Clause issue because the victim was calling for help with an ongoing emergency, not for evidentiary purpose
- statements are non-testimonial when made for primary purpose of assisting in investigation of an ongoing emergency
Hammon v. Indiana
- victim, after being isolated from abusive husband, made statements to police memorialized in affidavit
- did create a Confrontation Clause issue because purpose of the affidavit was to create evidence for trial
Michigan v. Bryant - Holding
CORE Q: for testimonial, in light of all the circumstances, viewed objectively, was the primary purpose to create an out-of-court substitute for in-court testimony?
- need to look at both declarant’s purpose in making the statement and the police purpose in obtaining it
- objective test, not subjective
- not just ongoing emergency, need to look at informality of situation
Michigan v. Bryant - Facts and Ruling
- victim stated to the police in the course of an investigation that Bryant shot him, but died shortly thereafter
- SCOTUS ruled statements were not testimonial - said primary purpose was to meet ongoing emergency (police needed id and description of shooter and location of shooting to address the emergency)
-> emergency ongoing + circumstances not clear
Ohio v. Clark
- convo between teacher + student re child abuse
- much less likely testimonial purpose if not a police officer
- Ohio had a mandatory reporting law - required certain professionals, including teachers, to report suspected child abuse (Ohio court said this made the statements testimonial - teachers were acting as agents of state under this law, + eliciting info functionally identical to live in-court testimony)
- SCOTUS ultimately ruled NOT testimonial though - response to ongoing emergency (teacher needs to know whether or not to let the child go home w/ the adult at the end of the day) + also “spontaneous” according to SCOTUS
- SCOTUS also noted very young children will rarely if ever raise Conf Cl issues b/c don’t know about trials -> therefore their primary purpose can’t be to create evidence
Truth and Confrontation Clause
- according to SCOTUS, if it’s not offered for the truth, then there is no Confrontation Clause issue
Hemphill v. NY
- 2022, SCOTUS
- there was some kind of q as to whether Hemphill had opened door by suggesting Morris was killer + could have plea allocution admitted in response
- majority decided you can’t put an “open the door” clause on the Confrontation Clause, since it’s not a procedural matter, it’s a Constitutional guarantee
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Non-Hearsay Uses of Out-of-Court Statements11
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Hearsay and Implied Assertions9
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Confrontation Clause20
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Exemptions from Hearsay Rule30
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Hearsay Exceptions34
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Hearsay Exceptions - Rule 80429
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Due Process and Hearsay9
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Character Evidence32
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Additional Limits on Relevance12
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Impeachment21
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Rehabilitation10
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Opinion Testimony26
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Attorney-Client Privilege33
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Additional Privileges15
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Rules Only Applied to Physical Evidence19
