The Sixth Amendment to the United States Constitution, made applicable to the states via the Fourteenth Amendment, provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI; Pointer v. Texas, 380 U.S. 400, 403 (1965). In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court held that the Confrontation Clause guarantees a defendant's right to confront those who "bear testimony" against him. Id. at 51. US v. Welch, (8th Cir. 2016).
In Crawford v. Washington, the Supreme Court explained that "witnesses" against the accused are "those who bear testimony" and that "'[t]estimony,' in turn, is typically a solemn declaration or affirmation made for the purpose of establishing or proving some fact." 541 U.S. at 51 (internal quotation marks and citations omitted). "Where testimonial evidence is at issue, . . . the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination." Id. at 68. US v. Rainbow, (8th Cir. 2016).
The Crawford Court listed "[v]arious formulations of this core class of 'testimonial' statements," including (1) "ex parte in-court testimony or its functional equivalent," 541 U.S. at 51, (2) "extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions," id. at 51-52 (quoting White v. Illinois, 502 U.S. 346, 365 (1992) (Thomas, J., concurring in part and concurring in judgment)), and [ ] (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." Id. at 52. The Confrontation Clause "applies only to testimonial hearsay." Davis, 547 U.S. at 823. [Footnote omitted.] Linton v. Saba, (1st Cir. 2016).
"[T]he Confrontation Clause prohibits (1) testimonial out-of-court statements; (2) made by a person who does not appear at trial; (3) received against the accused; (4) to establish the truth of the matter asserted; (5) unless the declarant is unavailable and the defendant had a prior opportunity to cross examine him." United States v. Jackson, 636 F.3d 687, 695 (5th Cir. 2011) (alteration in original) (citation omitted); see also Crawford v. Washington, 541 U.S. 36 (2004). US v. Carmona-Ramos, (5th Cir. 2016).
Confrontation Clause inquiry is twofold. "First, a court should determine whether the contested statement by an out-of-court declarant qualifies as testimonial under Davis [v. Washington, 547 U.S. 813 (2006)] and its progeny." Berrios, 676 F.3d at 127 (footnote omitted). "[S]tatements made under circumstances that would lead an objective witness reasonably to believe that the statement would be available for use at a later trial are testimonial." United States v. Hinton, 423 F.3d 355, 360 (3d Cir. 2005). The core class of testimonial statements includes "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; extrajudicial statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions." Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310 (2009) (alteration omitted) (quoting Crawford, 541 U.S. at 51-52). US v. Moreno, (3rd Cir. 2016).
The second step in [ ] Confrontation Clause inquiry requires that a court apply the appropriate safeguard: "If the absent witness's statement is testimonial, then the Confrontation Clause requires 'unavailability and a prior opportunity for cross-examination.'" Berrios, 676 F.3d at 127 (quoting Crawford, 541 U.S. at 68). US v. Moreno, ibid.
The Confrontation Clause, [ ] affects only "testimonial" statements. See, e.g., Ohio v. Clark, 135 S. Ct. 2173 (2015); Crawford v. Washington, 541 U.S. 36 (2004). Indeed it covers only a subset of testimonial hearsay. Statements that would have been admissible at common law in 1793 (in other words, statements that are not hearsay or are covered by longstanding exceptions to the hearsay doctrine) are outside the Sixth Amendment, see Giles v. California, 554 U.S. 353, 358-59 (2008), as are all statements by witnesses who are available for cross-examination, see Crawford, 541 U.S. at 60 n.9. And Clark shows that the Court has not yet decided whether the Confrontation Clause covers testimonial statements by one private party to another. Thus if a statement is not hearsay, because not offered for its truth, it also is not "testimonial" for the purpose of the Confrontation Clause. US v. Smith, (7th Cir. 2016).
In Melendez-Diaz v. Massachusetts, the Supreme Court held that affidavits regarding the chemical composition of a seized substance were "testimonial" and that the laboratory analysts who certified the results were "witnesses" for purposes of the Confrontation Clause. 557 U.S. at 310-11. The Court reasoned that "not only were the affidavits made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial, but under Massachusetts law the sole purpose of the affidavits was to provide prima facie evidence of the composition, quality, and the net weight of the analyzed substance." Id. at 311 (internal citations and quotation marks omitted); Bullcoming, 131 S. Ct. at 2717 ("A document created solely for an 'evidentiary purpose,' Melendez-Diaz clarified, made in aid of a police investigation, ranks as testimonial." (quoting Melendez-Diaz, 557 U.S. at 311)). "[I]n Bullcoming v. New Mexico, the Court extended Melendez-Diaz's holding and determined that the person who conducts a laboratory test—not merely a colleague knowledgeable about the testing procedures and equipment used—must be available for cross-examination to satisfy the Sixth Amendment's confrontation requirement." United States v. Williams, 720 F.3d 674, 698 (8th Cir. 2013) (citing Bullcoming, 131 S. Ct. at 2716). U. S. v. Raninbow, ibid.
"The primary purpose of confrontation is 'to secure for the opponent the opportunity of cross-examination.'" United States v. Celestin, 612 F.3d 14, 19 (1st Cir. 2010) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986)). Thus, except in limited circumstances, "out-of-court statements of a non-testifying defendant . . . may not be used against a jointly tried codefendant." Vega Molina, 407 F.3d at 518-19. US v. Martinez, (1st Cir. 2016).
A trio of Supreme Court cases has shaped the law on the admissibility of extrajudicial confessions in multi-defendant cases. In Bruton v. United States, 391 U.S. 123 (1968), the Supreme Court found that a non-testifying codefendant's "powerfully incriminating" confession, which "expressly implicat[ed]" a jointly-tried defendant, was inadmissible, reasoning that "in the context of a joint trial we cannot accept limiting instructions as an adequate substitute for [the jointly-tried defendant's] constitutional right of cross-examination." Id. at 124 n.1, 135-37. Later, however, the Supreme Court declined to find a Bruton error where a codefendant's confession had been redacted to eliminate any reference to the defendant, even though the confession implicated the defendant when linked to other evidence offered at trial. See Richardson v. Marsh, 481 U.S. 200, 208 (1987). Finally, a third case, Gray v. Maryland, 523 U.S. 185 (1998), focused on the methods used by the prosecution to redact a codefendant's confession, and the risk that the jury might infer that a jointly-tried defendant was the subject of the redaction. See id. at 196 ("The inferences at issue here involve statements that, despite redaction, obviously refer directly to someone, often obviously the defendant, and which involve inferences that a jury ordinarily could make immediately . . . ."). US v. Martinez, ibid.
THIS CASEBOOK contains a selection of 210 U. S. Court of Appeals decisions that analyze and discuss issues stemming from the Sixth Amendment's Confrontation Clause. The selection of decisions spans from 2004 to the date of publication.