Confrontation Clause

Question 1

6th Amendment

Answer 1

In criminal cases, a defendant shall have the right to confront the witnesses against him.

Question 2

Crawford v. Washington

Answer 2

• Brought 6th amendment to the forefront
• Idea of confrontation clause
• Victim allegedly tried to rape man’s wife who stabbed him
• Played tape of wife’s statements to the police
• Supreme Court said it wasn’t okay – put the wife on the witness stand
• Under 6th amendment, right to cross-examine witness

Question 3

Confrontation Clause

Answer 3

General Rule: Prefer a live witness on the witness stand to testify. Do not want any hearsay exceptions (even though some will of course remain)

Requirements for application:

• The statement is offered against the accused in a criminal case, and its at trial;
  • Don’t care about grand jury, preliminary hearing, etc.
  • Does not affect civil cases
• The declarant is unavailable;
• The statement is “testimonial” in nature; and
• The accused had no opportunity to cross-examine the declarant’s testimonial statement prior to trial (former testimony is okay)

Question 4

Testimonial Statements

Answer 4

• When the primary purpose of the statement is to establish or prove past events potentially relevant to later criminal prosecution
• Statements developed/memorialized/recorded in order to use down the road in future criminal prosecution
• Most obvious form: Statement that you give to the police
• Statements made to other civilians are NOT testimonial

Question 5

Samples of Testimonial Statements

Answer 5

• Statements made at preliminary hearing
• Statements made to grand jury
• Statements made at former trial
• Statements made during course of police interrogation, where the interrogation has a backward looking what happened nature
• Lab reports – Melendez Diaz case (going to have to have chemist testify as to results)

Former testimony: If a statement is testimonial it must have been subject to cross-examination either before or at trial.

Question 6

Non-Testimonial Statements

Answer 6

• Statements where the primary purpose of the statement is to enable police assistance to meet an ongoing emergency.
• Emergency Doctrine – (Davis v. Washington):

911 call must usually refer to:

• Events that were actually happening (not past events)
• Victim facing an ongoing emergency and seeking help against a bona fide physical threat
• You need help right now
• Objective whether there is an ongoing emergency
• Borderline: If someone left, but afraid the person will come back – need more information
• If after the fact, then testimonial (If fact gathering after emergency has ended).
• Operator asking questions which were necessary to be able to resolve the present emergency, rather than simply to learn what had happened in the past
• Level of formality lower

Note: Excited utterances have so far survived Crawford

Question 7

Samples of Non-Testimonial Statements

Answer 7

• Excited utterances made in informal circumstances and not made to the authorities
• Statements by crime victim to a physician or nurse if made principally for the purpose of obtaining medical treatment or diagnosis (whereas rape kit is used for criminal prosecution)
• 911 calls describing a pending emergency, while it is happening
• Dying declarations (firmly rooted in exception)

Question 8

Davis v. Washington

Answer 8

• Boyfriend beat her up and then left. Ongoing emergency? Court said yes. (Prof. does not agree).
• Test: Hearsay is non-testimonial if its primary purpose is to enable police assistance to meet an ongoing emergency. Definition of on-going emergency comes from judge.
• Key: Understand what is the confrontation clause. If judge deems as ongoing emergency…let that evidence in. If not, no. Lab reports/coroner’s reports do not come in anymore.

Question 9

Subject to Cross-Examination

Answer 9

A declarant may be subject to cross-examination at 2 different times: (1) Time of declaration, (2) Time of the accused’s trial

Question 10

Problem - Child victim of sexual assault. Statements to doctors? Child could not remember incident.

Answer 10

Not testimonial in nature b/c medical diagnosis. Experiencing on-going pain, brought to doctor to determine what the pain is from.

Courts have held: If person honestly doesn’t remember, then that is not an opportunity to cross-examine.

• Here: Child is honestly unavailable. Cannot testify to what happened, but unavailability does not matter b/c not testimonial to begin with. Rather, try to get in as a medical statement.