#11411 - Confrontation Clause - Evidence

Confrontation Clause – only applies to crim!!!

1. 6th amendment: In all criminal prosecutions, the accused shall enjoy the right…to be confronted with the Witnesses against him”

   1. no legislative history

   2. words subject to number of possible interpretations

   3. purpose:

      1. to protect against admission of Spanish-Inquisition type evidence

      2. Sir Walter Raleigh

2. Case Law

   1. Old rule: Ohio v. Roberts (1980)

      1. Facts: D charged with forgery of check and possession of stolen credit cards. D wanted to use V’s daughter to show that she had given D the checks/permission to use them. She did not testify to this during prelim hearing, and did not appear at court. D argued this story anyhow, and govt. sought to enter her testimony from prelim.

      2. Held: statement not a violation of CC, because it bore adequate indica of reliability (former testimony rule)

      3. Hearsay statement not a violation of confrontation clause if: (2 prongs)

         1. Declarant is unavailable – prosecution must produce the hearsay declarant or demonstrate their unavailability

         2. Statement itself had certain “indica of reliability,” meaning either

            1. Statement fell within a “firmly rooted hearsay excpetion”…

               1. All non-residual exceptions counted as firmly rooted

               2. Policy: decades of thinking behind what kind of OOC statatements were reliable enough to be admitted

            2. OR Statement bore “particularized guarantees of trustworthiness”

               1. Even if statement fell under residual exception, it could be admitted if it had particularized guarantees of trustworthiness

      4. Cases Interpreting Roberts:

         1. Lilly v. Virginia (1998):

         2. Facts: D arrested after stealing liquor, guns, kidnapping, and murdering. Partner in crime admitted to police his involvement, and claimed Lilly shot V. Refused to testify.

         3. Held: the admission of PoC’s confession violated Lilly’s CC right.

         4. Rule: Supreme Court plurality: statements against penal interest (accomplices’ confessions that inculpate a criminal D), admitted under FRE 804(b)(3) are not firmly rooted.

            1. Breyer: Roberts linkage of the confrontation right so closely to the “firmly rooted” provisions of hearsay rule was both too broad and too narrow a standard

            2. Scalia and Thomas: confrontation right is more limited than Roberts, Wright and Lily held – the right “is implicated by extra judicial statements only insofar as they are contained in formalized testimonial material, such as affidavits, depositions, prior testimony to confessions”

         5. Idaho v. Wright (1990):

            1. Facts: Wright convicted with lewd conduct with her two daughters. Govt decided 3yo daughter was incapable of testifying, and so put Doctor on stand, who was an expert and testified that tests revealed evidence “strongly suggestive of sexual abuse” and who testified as to statements made to him by youngest daughter.

            2. Held: Admission of this hearsay evidence through the residual exception was a violation of CC.

            3. Rule: Residual exception not firmly rooted.

      5. Crawford’s problems with this interpretation:

         1. Confrontation is not about reliability (gives more weight to FRE than constitution)

         2. Too indeterminate and manipuable

         3. Disconnected from underlying point of CC

            1. Underlying point = to reject the continental, inquisitorial mode of trial, in which witnesses are questioned privately by examining officials, and the defendant never has an opportunity to confront his accusers face to face. Core point = D’s ability to cross examine

   2. Current rule: Crawford v. Washington (2004)

      1. Facts

      2. Rule:

         1. Testimonial hearsay statements admitted against criminal defendant only if

            1. Declarant is unavailable; and

            2. Defendant has had a prior opportunity to cross examine

         2. When is a statement testimonial?

            1. Crawford rule doesn’t actually say, just says that Sylvia’s statement is testimonial under any definition because declarant was

               1. in custody

               2. mirandized

               3. interrogated

               4. statement was taped

            2. Scalia: pg 587

               1. Ex parte in-court testimony or its functional equivalent – that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially

               2. Extrajudicial statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions

               3. 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

      3. Interpretations

         1. Davis v. Washington (2006)– primary purpose test

            1. Facts: Wife calls 911 to tell operator that Davis had beaten her with his fists and then left.

            2. Held: statements made to address ongoing emergency, so not testimonial.

            3. Thomas: concurrence/dissent = although wife’s statements were not testimonial, the Court should not “guess” at the primary motive behind the statements

            4. Rule:

               1. Nontestimonial

                  1. Made in course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency

               2. Testimonial

                  1. Circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution

         2. Hammon v. Indiana (2006) – primary purpose test

            1. Facts: Police responded to a DV call. Found wife on porch and husband inside. Police questioned them separately, after wife said that she did not hneed help. Then wife signed a police statement regarding the abuse by her husband.

            2. Held: Statement not made during ongoing emergency, but only to prove past events potentially relevant to later criminal prosecution

         3. Michigan v. Bryant (2011)– primary purpose test

            1. Facts: Detroit police dispatched to gas station parking lot and found V mortally wounded. V Told them he had been shot by Bryant outside Bryant’s house and then had driven himself to lot.

            2. Held: V’s statements are non-testimonial. Ongoing emergency = there was a murderer out in the streets that might cause more harm. V’s statements were necessary in finding suspect to end the emergency.

         4. Melendez-Diaz v. Massachusetts (2009)

            1. Held: forensic reports that certifiy incriminating test results are testimonial. It does not suffice to call a supervisor or other “surrogate” W to stand in place of the actual author of the report.

            2. Affirmed in 2011 by Bullcoming v. New Mexico, which left it open as to whether prosecution could introduce an analyst’s testimonial forensic report through an expert witness

         5. Williams v. Illinois (2011)

            1. Held:...