Confrontation clause questions only arise in criminal cases where hearsay with an exception exists. If the statement falls into this category, the court needs to ask if (1) the declarant appeared for cross-examination, (2) if unavailable, there was an opportunity to cross-examine earlier, (3) the statement is not testimonial, (4) the defendant forfeited their confrontation right, and (5) in some cases whether the statement is a dying declaration. If the answer to any of those questions is “yes” then there is no confrontation violation and is admissible subject to a 403 analysis.

Mattox v. United States

156 U.S. 237 (1895).

Mattox was convicted of murdering Mullen. Two witness’s affidavits were admitted against him because the witnesses had since died. The issue is that the courts do not want to allow ex party affidavits against the defendant without the ability to cross-examine. Here, the defendant had the ability to cross-examine so the material could be admitted against him.

So long as the need for the hearsay evidence is (1) necessary and (2) reliable, it can survive the confrontation clause challenge. This all changed in Crawford v. Washington.

Crawford v. Washington

541 U.S. 36 (2004).

Lee was stabbed by Crawford and Crawford was later implicated by his wife. When the wife was not available to testify at court due to martial privilege, Crawford said her testimony was inadmissible as a violation of the confrontation clause. The new rule: “Testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant had a prior opportunity to cross-examine.” That is, we will no longer test for reliability and only focus on whether there was an opportunity to cross-examine.

How do you determine whether a statement is testimonial? See the cases below.

Davis v. Washington

547 U.S. 813 (2006).

To determine “testimonial” ask “what was the primary purpose of the statement?” Was it to help a criminal investigation (testimonial) or resolve an ongoing emergency (not)?

Giles v. California

554 U.S. 353 (2008).

Wrongful conduct will forfeit the confrontation right if the wrongful conduct made a witness unavailable and the defendant’s actions had the intent to make the defendant unavailable.

People v. Santiago, 2003 N.Y. Slip Op. 51034(U) (Sup. Ct. 2003). Here, the wife was undergoing battered wife syndrome and had previously approached officers about her abuse. She showed up to a preliminary hearing and recanted her statement. Fearing that she would not show up to the trial, based on the defendant’s actions, the state sought to admit her previous statements before recanting. Can they do so? Yes, but likely only once she does not show up to testify. In the preliminary hearing the judge is likely to put it on the back burner until then.

Michigan v. Bryant

562 U.S. 344 (2011).

Covington had been shot and found in a gas station parking lot. He implicated Bryant as the shooter and died shortly thereafter. The question was whether Covington’s statements were testimonial. Here, the Court said no because this was an ongoing emergency. The officers did not know where Covington had been shot, whether the shooter was still around, or what other dangers it might pose. Further the statements made by Covington did nothing to decrease that emergency. So, the statements are not testimonial and may be admitted.

Commonwealth v. Nesbitt, 452 Mass. 236 (2008). Nesbitt made a 911 call requesting help and implicating Nesbitt as “beating her” and that she “didn’t want to die.” There was no indication to the dispatcher that she was dying, or that the attacker was still present (having been told that he ran away). Is there an ongoing emergency? Likely no, and this is testimonial, excludable unless this is a dying declaration

United States v. Polidore, 690 F.3d 705 (5th Cir. 2012). Officers received an anonymous tip and the dispatcher attempted to gain more information about the criminal. Was there an ongoing emergency? Not likely, the statements were primarily made to help police activity and are therefore testimonial.

Bullcoming v. New Mexico

564 U.S. 647 (2011).

Bullcoming had a blood sample drawn to test his blood-alcohol. The lab report was prepared and certified by one of the hospital technicians. The technician was unavailable at trial. So, the state attempted to admit it as evidence as a business record by testimony of another technician. At trial, this testimony was evidence.

On appeal, the Supreme Court reversed. The lab report is a statement and is testimonial because the primary purpose is to help with the prosecution. Here, the technician who prepared and certified the report was unavailable to be cross-examined so the statement is not admissible.

State v. Thomas, 2016–NMSC–024, what if a technician had moved and the best way to testify would be over Skype? Is there a confrontation problem there? Likely yes.

Williams v. Illinois

567 U.S. 50 (2012).

A technician report if interpreted in part by an expert witness is not a violation of the confrontation clause.

Ohio v. Clark

576 U.S. 237 (2015).

Here, a preschool child reported physical abuse to his teachers. His statement and the teachers questioning was not a violation of the confrontation clause. To determine testimonial, ask “was the primary purpose to assist in a prosecution?” If yes, then testimonial. Here, the answer was no, so no violation.

State v. Jensen, 2021 WI 27 (2022). Jensen wrote a note saying that she would never take her own life and was worried her husband was getting ready to kill her. After her death, can this note be used against the husband? No.

State v. Jones, 140 Conn. App. 455 (2013). An officer approached Jones’s car who fled and ran over the officer’s foot. Two nurses treated him at the hospital and one was unable to testify. Can their report be admitted against the defendant? Probably not admissible under hearsay 803(4), but would pass confrontation clause if it makes it past hearsay.

State v. Stahl, 2005–Ohio–1137 (Ct. App. 2005). A victim accused Stahl of rape and she went to the police. She submitted herself for testing with a nurse to examine for any sexually transmitted issues related to the rape. Before trial could occur, the victim unexpectedly died of another cause. Could her statements to the nurse implicating the defendant be used against him at trial?


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Categories: 2L Spring, Evidence

Will Laursen

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