10.7 Confrontation and Cross-examination

• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2018 Ed.)

10.7 CONFRONTATION AND CROSS-EXAMINATION

10.701 In General. The Sixth Amendment guarantees that in all criminal prosecutions the accused has the right "to be confronted with the witnesses against him." Inherent in this right is the related right of cross-examination. ²²⁹ The constitutional right to confront and cross-examine the Commonwealth's witnesses is complex. Difficult issues have arisen when this constitutional right is asserted in the context of state law hearsay rules, where the testimony of a witness at a prior proceeding is used in the absence of the witness at a later time, where a codefendant's extrajudicial statements are admitted in a joint trial and the codefendant refuses to take the stand at trial, where the rules of evidence limit cross-examination rights, and where the state otherwise seeks to prevent a "face-to-face" confrontation between the accused and his or her accuser. The right to confront and cross-examine witnesses also is directly linked to the constitutional right to compel the attendance of witnesses, which is discussed in paragraph 10.8 of this chapter. As with other federal constitutional rights, a state may attach time limits to their exercise so that failure to exercise them constitutes a waiver. ²³⁰

10.702 Hearsay.

A. In General. When the prosecution seeks to use the statements of a person who does not testify at trial, and when, under the law of hearsay, that evidence is admissible, confrontation and cross-examination issues arise. For many years, the Supreme Court adhered to the principle that no Sixth Amendment protection was available to the defendant when hearsay was admitted as long as the evidence was supported by sufficient

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indicia of reliability. ²³¹ The Supreme Court has fundamentally redefined hearsay, however, and held the proper analysis of whether a statement is hearsay is the "primary purpose" analysis, which is "whether, in light of all the circumstances, viewed objectively, the 'primary purpose' of the conversation was to 'create an out-of-court substitute for trial testimony.'" ²³²

This redefining of hearsay began in 2004 with Crawford v. Washington, ²³³ where the Supreme Court reversed itself and overruled many of its earlier decisions. Crawford also effectively overruled many earlier Virginia decisions that were predicated on those earlier United States Supreme Court rulings. Crawford held that testimonial hearsay is admissible in a criminal case over the defendant's Sixth Amendment objection only if (i) the witness is unavailable for trial and (ii) the defendant had a prior opportunity to cross-examine that witness. In other words, the focus is now on prior opportunity to cross-examine rather than on the inherent reliability of the evidence. The Sixth Amendment is no longer co-extensive with the law of hearsay. The Supreme Court has ruled that Crawford does not apply retro-actively. ²³⁴

In Melendez-Diaz v. Massachusetts, ²³⁵ the Supreme Court extended its definition of what evidence is testimonial, holding that state laboratory analysis prepared for criminal prosecution is testimonial and thus subject to the Confrontation Clause. The Supreme Court subsequently remanded three Virginia cases pending before it for consideration in light of Melendez-Diaz. ²³⁶ On remand, the Virginia Supreme Court ruled that a defendant's rights under the Confrontation Clause cannot be replaced by a system in which the prosecution presents its evidence via ex parte affidavits and waits for the defendant to subpoena the affiants if he or she chooses. ²³⁷ Ruling that the certificate of analysis was improperly admitted over objection of counsel, the Virginia Supreme Court reversed and remanded Cypress for a new trial but affirmed the conviction in Briscoe, ruling that the error was harmless. ²³⁸ In

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Aguilar v. Commonwealth, ²³⁹ the Virginia Supreme Court ruled that the analysis work of two laboratory technicians was not subject to the Confrontation Clause because the certificate did not contain their testimonial statements, and their conclusions were independently evaluated by the examiner who prepared the certificate and testified at trial.

In response to the Supreme Court decision in Melendez-Diaz v. Massachusetts, ²⁴⁰ the Virginia General Assembly revised statutory provisions regarding the use of affidavits and certificates of analysis to provide "notice-and-demand" provisions deemed acceptable by the court. ²⁴¹

In 2011, the Supreme Court once again extended the definition of testimonial in Bullcoming v. New Mexico, ²⁴² holding that the defendant's Sixth Amendment right to confrontation was violated when, in lieu of the analyst who did the original lab work and prepared the certificate, the state called another analyst who was familiar with the testing device used to analyze the defendant's blood and with the laboratory's testing procedures but had neither participated in nor observed the test on the defendant's blood sample.

In Williams v. Illinois, ²⁴³ the Court made it clear that the Confrontation Clause permits the admission of statements that are not admitted for the truth of the matter asserted. Citing "settled evidence law" providing that an expert may express an opinion that is based on facts that the expert assumes, but does not know, to be true, the Court held that it is up to the party who calls the expert to introduce other evidence establishing the facts assumed by the expert. However, the Court held that "modern practice" does not demand the formality of having an expert who based an opinion on assumed facts testify in the form of an answer to a hypothetical question. The Court further held that lab technicians producing a DNA profile for the purpose of catching a dangerous rapist still at large rather than to obtain evidence against the defendant, who was neither in custody nor under suspicion at that time, generally have no way of knowing whether the profile will turn

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out to be incriminating, exonerating, or both. It should be noted that "modern practice" as embodied in uniform rules of evidence has not been adopted in Virginia. At the same time, the requirement in Rule 2:705(b) that assumed facts be put in the form of a hypothetical question, while perhaps not "modern," can afford greater protection to a defendant, because it assists a trier of fact in separating what's actually proven from what's merely assumed. Under Rule 2:703(b), an expert opinion in a criminal case may only be based upon facts personally known or observed by the expert, or based upon facts in evidence.

The common-law doctrine of forfeiture by wrongdoing is an exception to the hearsay rule, which allows testimonial statements to be admitted when the defendant's own misconduct caused the declarant to be unavailable at trial. ²⁴⁴ The forfeiture-by-wrongdoing exception to the hearsay rule and Confrontation Clause can be based on actions of co-conspirators. Thus, in a prosecution for conspiracy to distribute narcotics, the informant's statements to police linking defendant to a drug-trafficking organization were admissible under this exception even though the defendant did not participate in the wrongdoing that caused the informant's death. The informant's murder was carried out by the defendant's co-conspirators in furtherance of the conspiracy and was reasonably foreseeable by the defendant. ²⁴⁵

It is important to note that while the Supreme Court attempted to resolve hearsay analysis in its 2015 Ohio v. Clark ²⁴⁶ decision by explaining the "primary purpose" analysis, it did not explicitly overrule the many exceptions to admitting hearsay statements at trial. Rather, the Clark decision fundamentally alters the analysis of admissibility of hearsay statements by clearly imposing the "primary purpose" analysis, explaining that "witnesses," under the Confrontation Clause analysis in Crawford v. Washington, ²⁴⁷ are those "who bear testimony" and defining "testimony" as "a solemn declaration or affirmation made for the purpose of establishing or proving some fact." ²⁴⁸ It further stated that the Sixth Amendment prohibits the introduction of testimonial statements by a nontestifying witness, unless the witness is

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"unavailable to testify, and the defendant had had a prior opportunity for cross-examination." ²⁴⁹

The Supreme Court summed up the "primary purpose" analysis by stating,

[i]n the end, the question is whether, in light of all the circumstances, viewed objectively, the "primary purpose" of the conversation was to create an out-of-court substitute for trial testimony. . . . [A] statement cannot fall within the Confrontation Clause unless its primary purpose was testimonial. Where no such primary purpose exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause. ²⁵⁰

B. What Is "Testimonial." In order to determine whether an out-of-court statement in a conversation was intended to create an out-of-court substitute for trial testimony, the trial court must consider "all of the relevant circumstances," including but not limited to "the informality of the situation and the interrogation." ²⁵¹

Many cases, like Clark, involve statements made to police, but under different circumstances. In Davis v. Washington and Hammon v. Indiana, ²⁵² two cases decided together involving domestic abuse, the Supreme Court used this analysis to find one statement admissible but not the other. The victim in Davis made statements to a 911 emergency operator during and shortly after her boyfriend's violent attack, which the Supreme Court found nontestimonial. In Hammon, the victim, after being isolated from her abusive husband, made statements to police that were memorialized in a "battery affidavit," which the Supreme Court found to be testimonial. In deciding these cases, the Supreme Court held that statements are

nontestimonial when made in the course of police interrogation under...