Confrontation Clause- 6th Amendment

Question 0

CC Crawford Test Generally

Answer 0

1. The 5th Amendment guarantees a criminal defendant the right to confront a HS declarant whose out of court statement is testimonial
2. If a HS declarant’s statement is testimonial, it violates the 6th Amendment, unless
   - a. Declarant is unavailable and defendant had an opportunity to cross OR
   - b. Grandfathered in excpetions (dying declaration or forfeiture)
3. Keep in mind that the 6th does not limit the admission of non-testimonial hearsay. Testimonial HS may be introduced if the declarant is available as a witness

Question 1

Confrontation Clause 6th Amendment

Answer 1

• In all criminal prosecutions, the accused shall enjoy the right to confront (the right to cross-examine) anyone who provides “Testimonial evidence” against them
• Only applies in criminal cases against the accused!

Exam Tips

• This is hearsay’s shadow hurdle. If its criminal and you discuss HS, you must write something on CC
• If there is no crime or any evidence offered against the accused, the CC does not apply
• Brought up in motion in limines

Question 2

CC Crawford Test Foundation

Answer 2

1. Must be a criminal case (the defendant has a right to confront a HS declarant)
2. Whose out of court statement is testimonial::
   -a. ONLY statements to be used against the accused that the declarant would have reasonably expected to be used prosecutorially such as
   ==Formal statements during litigation like affidavits, custodial examinations, prior testimony ( & defendant was unable to cross)
   ==Statements responding to conventional police interrogations
   ==Lab reports
   ==Similar Pretrial statements that declarants would reasonably expect to be used prosecutorially
3. Not non testimonial statements such as
   -a. causal, offhand, overhead remarks
   -b. statements to third parties, admissions by or attributed to a party
   -c. statements not offered for the truth
   -d. Business records
   -e. Statements made in furtherance of a conspiracy
   -f. Defendant’s own statements
   -g. Primary Purpose Test
   ==Past events -> Testimonial
   ==Ongoing Emergency -> non testimonial
4. If testimonail, the HS declarant must be available for cross. IF NOT available it violates the 6th unless the declarant had a prior opportunity to cross OR the HS is a grandfathered in exception: (dying declaration & forfeiture)

Question 3

Crawford Test –Primary Purpose Test

Answer 3

Past events are testimonial

1. If the primary purpose is to establish or prove past events potentially relevant to a later criminal prosecution, the statement is testimonial
2. Harmon (women at home after battery occured)
   - -In her home, the attacker was gone, the women clearly understood she was speaking with police for an investigation

Ongoing emergency is non testimonial

1. Davis (women being beaten while on the phone)
   - -Was the victim describing the events as they occured, and was facing an ongoing emergency. I.e. it was a call for help. The questions asked by 911 operator were necessary to resolve the present emergency, and the statements were formal like

Question 4

FRCP 807 - Residual Exception

Answer 4

Generally: gives the judge flexibility by allowing them admit the HS that falls outside the standing exceptions as long as the evidence has sufficient guarantees of trustworthiness

Foundation

1. Written notice (of all elements) to be given to opposing counsel
2. Circumstantial guarantees of trustworthiness
   - ex: this situation is one where the person is likely to tell the truth
3. Evidence goes to a material fact
4. More probative than any other currently available evidence
5. Serves the interest of justice

CA Distinction: CA does not have a catchall HS exception like this.