Confrontation Clause
The Sixth Amendment guarantees criminal defendants the right to be confronted with the witnesses against them — requiring that testimonial hearsay be excluded unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine.
Elements / Test
Crawford v. Washington (2004) framework:
- Is the out-of-court statement “testimonial”?
- If testimonial: Inadmissible unless declarant is (a) unavailable AND (b) defendant had prior opportunity to cross-examine
- If non-testimonial: Only the FRE hearsay rules apply; Confrontation Clause not implicated
“Testimonial” defined (Davis v. Washington):
- Primary purpose test: Statement is testimonial if its primary purpose is to create a record for use at a later trial, not to respond to an ongoing emergency
- Formal police interrogation after emergency has ended = testimonial (Crawford)
- 911 call during active emergency = non-testimonial (Davis)
- Certificate of drug analysis = testimonial (Melendez-Diaz)
- Lab report admitted through surrogate analyst = testimonial (Bullcoming)
- Child’s statement to teacher = non-testimonial if circumstances indicate responding to emergency, not generating evidence (Ohio v. Clark)
Exceptions and Edge Cases
- Forfeiture by wrongdoing: Defendant who causes declarant’s unavailability (e.g., murder) forfeits Confrontation Clause objection (Giles v. California — must show defendant intended to prevent testimony)
- Dying declarations: Historical exception may survive Crawford; some question remains
- Prior testimony: If declarant is unavailable, prior testimony subject to cross-examination satisfies the Clause
- Business records: Non-testimonial if created for business purposes, not for litigation
- Co-conspirator statements: Non-testimonial; no Confrontation Clause issue
- Pre-Crawford: Ohio v. Roberts (1980) “reliability” test — overruled by Crawford
Policy Rationale
Framers distrusted ex parte examinations; oral cross-examination historically the primary test of witness credibility. Crawford returns to original meaning — only sworn testimony subject to cross-examination is reliable.
Key Cases
| Case | Rule |
|---|---|
| Crawford v. Washington (2004) | Testimonial hearsay inadmissible without unavailability + prior cross-examination |
| Davis v. Washington (2006) | Primary purpose test — ongoing emergency = non-testimonial; formal interrogation = testimonial |
| Melendez-Diaz v. Massachusetts (2009) | Drug analysis certificate is testimonial; lab analyst must testify |
| Bullcoming v. New Mexico (2011) | Surrogate analyst cannot substitute for analyst who performed test |
| Ohio v. Clark (2015) | Child’s statements to teacher about abuse — non-testimonial given circumstances |