Hearsay and the Confrontation Clause

In Criminal cases, if a hearsay objection fails D may sometimes have a fallback objection based on the Confrontation Clause of the 6th Amendment. When hearsay is used in lieu of live testimony, the D can argue that the hearsay declarant was a witness and the defendant was deprived of the right to be confronted. Only excludes hearsay evidence that is especially dubious, dangerous, or unnecessary Does not exclude firmly rooted hearsay exceptions. does it carry special guarantees of credibility = to the guarantee of credibility produced by cross examination- (former testimony, excited utterances, medical diagnosis or treatment, forfeiture, dying declarations, admissions by coconspirators) Bourajally v. US

CRAWFORD V. WASHINGTON Held: when prior testimonial evidence is at issue, the evidence is inadmissible UNLESS 1) the declarant is unavailable, and 2) the D had an opportunity to cross-examine the declarant at the time the statement was made. Application of Confrontation Clause to Particular Types of Hearsay 1. Former Testimony and Testimonial Evidence a. Testimonial Evidence: preliminary hearing, grand jury, or former trial as well as statements taken by a police officer in the course of interrogations, or other similar pretrial statements that the declarant would reasonably expect to be used prosecutorially Davis v. Washington statements made in a 911 call are nontestimonial when the objective circumstances indicate that the primary purpose of the questioning was to enable police to respond to an ongoing emergency 2. Co Conspirators Statements (Admissions by Party Opponent) a. no showing of unavailability need be made when a statement of a co-conspirator is offered against the D (Admissions by party opponent- co-conspirator) b. No particularized showing of trustworthiness need be made when the prosecution offers a statement of a co-conspirator against the D because the co-conspirators exception is firmly rooted. c. Remember: Co-conspirators statements is an admission by party opponent; Must be: 1) Conspiracy supported by independent corroborating evidence, 2) made during the conspiracy, 3) in furtherance of the conspiracy 3. Residual Hearsay Rule IDAHO V. WRIGHT the court examined a childs statement concerning sexual abuse offered under a state court version of the Residual Exception. Although, the court assumed the child to be unavailable, it nevertheless held that because the catch-all

exception was not firmly rooted, the statement was not admissible in the absence of a particularized showing of trustworthiness. The only evidence on trustworthiness that could be used was evidence of the circumstances surrounding the making of the statement, not other evidence corroborating the hearsay declarants story. That meant in Wright that in evaluating the trustworthiness of the statement by the child about sexual abuse, physical evidence of abuse could not be used to show the trustworthiness for purposes of satisfying the Confrontation Clause.

4. Excited Utterances; Statements for Medical Treatment WHITE V. ILLINOIS the D challenged the admission of statements by a child implicating him in sexual abuse. The child was shown to be unavailable to testify. The court excused the prosecution from making such a showing. The Court also stated that the hearsay exceptions were firmly rooted and that where proffered hearsay has sufficient guarantees of reliability to come within a firmly rooted exception to the hearsay rule, the Confrontation Clause is satisfied. 5. Confessions by Accomplices- declarations against interest Bruton v. US the CC prohibits using the confession of an accomplice that he and the D had committed the crime against the D. The Court also held that a limiting instruction to the jury only to use the confession against the person making it and not against the D was not sufficient to protect the D. If however, the the part of an accomplices confessionor other out of court statement that incriminates te D itself falls under a firmly rooted hearsay exception, then it will be admissible against the D under the exception. Limiting instruction was insufficient because: 1. Constitutional issue 2. Direct Accusation 3. Criminal Case 4. Heart of the case 5. Any alternatives Gray v. Maryland the Court held that the Bruton Rule would prohibit the use of a non-testifying co-Ds confession in a joint trial that inculpates the D even if the confession had been redacted (references to Ds name replaced with deletion and symbols) 1) It was easy for the jury to ID D as the deletion or symbol, 2) is as incriminating as coD pointing to D in the courtroom, and 3) facially incriminating. The redaction should be so that jury cannot figure out a name has even been redacted. Richardson v. Marsh a co Ds confession in a joint trial is admissible if ALL

references to the D are COMPLETELY redacted AND there is a limiting instruction. a. Accomplices Confessions inculpating criminal D not firmly rooted Lilly v. Virginia a plurality of four justices held that accomplices confessions that inclupate a criminal D are not within a firmly rooted exception to the hearsay rule. b. Effect of Crawford Based on Crawford ruling an accomplices confession is not admissible unless the accomplice is unavailable and the D had an opportunity to cross-examine the accomplice at the time the statement was made. Thus it does not matter if the statement falls within a firmly rooted hearsay exception.