Confrontation Clause

Confrontation Clause applies only in criminal cases

Confrontation Clause governs much of the same evidence as hearsay rules but the two bodies of law do not overlap completely

• Hearsay is based on assessments of reliability

• Confrontation doctrine formerly as based on judicial assessments of reliability , 1980-2004 (See Roberts)

  • Post-Crawford , confrontation is a procedural guarantee of reliability, not a substantive one: it is a right to “confrontation”, meaning cross-examination

Mattox v. United Sates: Mattox does not get to cross examine the two witnesses against him in a murder trial, although he did in the first trial and the witnesses died before the second trial

• Hold: Confrontation Caluse permits introduction of transcripts of witness’ testimony from a prior trial if D cross examined at prior trial (i.e. if you had an opportunity to cross-examine the witnesses in a prior trial, confrontation clause is met)

  • D does not get much benefit from cross examining again, and to hold otherwise would be a huge cost to the system (he would get off)

  • “must also give way to considerations of public policy and necessities of the case” (dying declarations)

California v. Green:

Two Holdings:

1. If witness is here, you can introduce any prior statements they made if he can be cross examined n them

2. If declarant is unavailable but made statement under oath ad was subject to cross-examination, that is OK (restatement of Maddox)

Ohio v. Roberts: Looks like Rule 807, consists of:

1. Rule of necessity: prosecution much produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant

2. Rule of “Reliability”: If declarant unavailable, hearsay statement “is admissible only if it bears adequate ‘indica of reliability’”

White v. Illinois: Excited utterances and medical statements do not require necessity (what this case stands for is eventually the necessity requirement decays away and leaves reliability….)

Crawford v. Washington (“The Crawford Era”): D stabs a man that he believes tried to rape his wife. Wife made some statements that implicate husband, but she is protected by marital privilege not to testify, so her past statements get admitted and D objects on confrontation clause grounds.

• If out of court statements are deemed “testimonial”, then Confrontation Clause applies and we no longer do a Roberts Reliability analysis, or the Declarant has to be cross-examined while she is giving the testimony, or you can ask her about the statements

  • Requires unavailability and a prior opportunity for cross-examination

• Crawford: Confrontation Clause is a procedural rather than a substantive guarantee (not making a conclusion about truth of testimonial evidence)

• Hard part of the doctrine now I determining what is testimonial and what is not

  • Need to look at declarant’s motive (if it looks like declarant intended to give evidence to you, that is more suspicious)

    • Such is testimonial – which if the most worrisome evidence and the declarant should be in court to answer to it

Questions After Crawford

• What statements are “testimonial”?

  • One formulation is “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” OR statements D would reasonably expect to be used prosecutorially

• What happens to non-testimonial statements?

  • See Whorton v. Bockting: Roberts analysis is dead, confrontation clause does NOT apply to non-testimonial stuff

Giles v California: Wants to introduce statements about abuse. Hold that if D makes the witness unavailable they lose their constitutional right to cross-examine her (D killed his former girlfriend)

Key Point from Crawford: What is Testimonial is what determines what is subject to Confrontation Clause

1. What happens to non-testimonial statements?

   1. Not governed by confrontation clause (Whorton v. Bockting)

2. Can defendants forfeit confrontation rights by wrong doing, and what is the standard?

   1. Yes, see Giles v. California: If you make a W unavailable, you lose your constitutional right to confrontation (does it has to be with the intent to render unavailable?)

3. What statements are testimonial?

   1. What about assertive statements unlike Crawford?

      1. Michigan v. Bryan, ongoing emergency

   2. Government’s use of ex parte examinations, affidavits and confessions

   3. Police interrogations (like Sylvia Crawford, deposition, affadavity)

4. “Other” Testimonial Evidence

   1. Ongoing emergency/911 call

      1. In Davies, McCotty made statements at issue to a 911 operator during a domestic...

Buy the full version of these notes or essay plans and more in our Evidence Outline - Long Outlines.