Chapter 5 - §3. Right of confrontation & out-of-court statements

• Jurisdiction: United States

§3. Right of confrontation & out-of-court statements

A defendant's Sixth Amendment right to confront witnesses who testify against him sometimes conflicts with various exceptions to the hearsay rule. Under certain hearsay exceptions, an out-of-court statement made by a declarant can be admitted at trial against a defendant even though the declarant is unavailable to be cross-examined. See "Exceptions to Hearsay Rule," ch. 3-B, §1 et seq. On their face, these hearsay exceptions conflict with a literal reading of the defendant's Sixth Amendment right to confront witnesses brought against him. Before 2004, the U.S. Supreme Court resolved this conflict by reasoning that the purpose of the right of confrontation is to test the reliability of the evidence. Thus, a hearsay statement could be admissible under the Confrontation Clause if there was "adequate indicia of reliability" surrounding the hearsay statement. The Court concluded that adequate indicia of reliability could be found in one of two ways: (1) by showing that the statement falls within a firmly rooted exception to the hearsay rule or (2) by showing that it otherwise bears particularized guarantees of trustworthiness. Crawford v. Washington (2004) 541 U.S. 36, 42; Ohio v. Roberts (1980) 448 U.S. 56, 66. Under this interpretation, if a statement was admissible under the hearsay rule or a recognized exception, it was unlikely to violate a defendant's right of confrontation. See White v. Illinois (1992) 502 U.S. 346, 356-57 (Confrontation Clause is satisfied if statement falls within firmly rooted hearsay exception). In 2004, the U.S. Supreme Court in Crawford rejected the Roberts reliability test and clarified that not all hearsay statements violate the Confrontation Clause. The Confrontation Clause is only applicable to witnesses who "bear testimony" against an accused, and thus only hearsay statements that are "testimonial" are subject to its requirements. See Crawford, 541 U.S. at 51; Jurado v. Davis (9th Cir.2021) 12 F.4th 1084, 1096. The Court concluded that to admit testimonial statements, the Confrontation Clause commands that their "reliability be assessed in a particular manner: by testing in the crucible of cross-examination." Id. at 61. Thus, after Crawford, the fact that a testimonial statement is admissible under an exception to the hearsay rule no longer guarantees its admission under the Confrontation Clause. Instead, a testimonial statement is inadmissible under the Confrontation Clause unless (1) the defendant has an opportunity to cross-examine the witness at trial or (2) the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. Id. at 59 & n.9. See "Crawford analysis," ch. 5-E, §3.2.

Caution

Practitioners should use caution when reading court opinions (federal or state) discussing the admissibility of hearsay statements under the Confrontation Clause before Crawford was decided in March 2004. Before Crawford, the analysis focused on reliability, and the defendant's right of confrontation did not necessarily bar the admission of a hearsay statement by an unavailable declarant. As a result, decisions that predate Crawford are of very limited use when considering Confrontation Clause violations, although they may still retain some value when considering admissibility under the Bruton-Aranda rule. See "Joint trials & right of confrontation," ch. 5-E, §4.

Thus, after Crawford, a two-step analysis should be applied to determine whether the admission of a hearsay statement will violate a defendant's rights under the Confrontation Clause. The first step requires determining whether the statement is hearsay and, if so, whether a hearsay exception applies. If the statement is hearsay and admissible under a hearsay exception, the second step is to determine whether the admission of the statement violates the Confrontation Clause. See People v. Fayed (2020) 9 Cal.5th 147, 168; People v. Thompkins (1st Dist.2020) 50 Cal.App.5th 365, 406; People v. Meraz (2d Dist.2018) 30 Cal.App.5th 768, 777, disapproved on other grounds, People v. Valencia (2021) 11 Cal.5th 818. This involves determining whether (1) the statement is testimonial, (2) the declarant is unavailable, (3) the defendant had a prior opportunity to cross-examine the declarant, (4) the defendant waived the right of confrontation, and (5) the statement is exempt from the Confrontation Clause's requirements. Chart 5-3, below, illustrates this analysis.

5-3. Hearsay & Crawford Analysis

§3.1. Hearsay analysis. The first step in determining whether an out-of-court statement is admissible under the Confrontation Clause and the requirements of Crawford v. Washington (2004) 541 U.S. 36, is to assess whether the statement constitutes hearsay and, if so, whether a hearsay exception applies. If the statement is inadmissible under the hearsay rule, the statement is excluded and no further analysis is required.

1. Is the statement hearsay? The Crawford analysis applies only when an out-of-court statement is being offered to prove the truth of the matter stated (i.e., statement is hearsay). See "Characterization of hearsay evidence," ch. 3-A, §3. If an out-of-court statement is not being offered for this purpose, it is not hearsay and the Confrontation Clause is not implicated. Crawford, 541 U.S. at 59 n.9; U.S. v. Audette (9th Cir.2019) 923 F.3d 1227, 1238; Moses v. Payne (9th Cir.2009) 555 F.3d 742, 756; People v. Hopson (2017) 3 Cal.5th 424, 432; People v. Sanchez (2016) 63 Cal.4th 665, 681; People v. Livingston (2012) 53 Cal.4th 1145, 1163-64; People v. Blacksher (2011) 52 Cal.4th 769, 813; e.g., People v. Fayed (2020) 9 Cal.5th 147, 168-69 (informant's statements prompting D to confess to murdering his wife were nonhearsay because they were not offered for truth; statements demonstrated that informant did not threaten or intimidate D and were admissible to put D's admissions into context); People v. Venegas (2d Dist.2020) 44 Cal.App.5th 32, 37 (text messages sent from co-D to relative concerning sale of a gun after a shooting were admissible to demonstrate consciousness of guilt and not for truth).

2. Does the statement fit a hearsay exception? If the statement being offered is hearsay, the next question is whether a hearsay exception applies. Blacksher, 52 Cal.4th at 813. See "Exceptions to Hearsay Rule," ch. 3-B, §1 et seq. If no hearsay exception applies, the statement is excluded from evidence because it must satisfy both the hearsay rule and the Confrontation Clause to be admissible.

Practice Tip

An objection that a particular statement violates the hearsay rule does not automatically preserve a Confrontation Clause objection. People v. Chaney (4th Dist.2007) 148 Cal.App.4th 772, 777. Defense counsel should make both objections, although the California Supreme Court has allowed criminal defendants some latitude in avoiding a waiver of evidentiary objections, particularly in death-penalty cases. See People v. Gutierrez (2009) 45 Cal.4th 789, 809; see, e.g., People v. DArcy (2010) 48 Cal.4th 257, 289-90 (although D forfeited Confrontation Clause violation claim by failing to object at trial, court decided merits of issue in affirming death penalty).

§3.2. Crawford analysis. If the hearsay statement is admissible under a hearsay exception, the next step is to determine whether the statement is admissible under the requirements of Crawford v. Washington (2004) 541 U.S. 36. In Crawford, the Court held that the Confrontation Clause bars the admission of an adverse witness's out-of-court testimonial statement unless (1) the defendant has an opportunity to cross-examine the witness at trial or (2) the witness is unavailable at trial and the defendant had a prior opportunity to cross-examine the witness. Crawford, 541 U.S. at 59 & n.9; see People v. Amezcua (2019) 6 Cal.5th 886, 911-12; People v. Perez (2018) 4 Cal.5th 421, 455. This is referred to as conducting a Crawford analysis, which requires the following steps:

• Step 1—Determine if the statement is testimonial. This is typically the most critical part of the analysis. If the statement is nontestimonial, the Confrontation Clause is not implicated and the statement may be admitted if not otherwise excluded by some other evidentiary rule. See "Is statement testimonial?," ch. 5-E, §3.2.1. If the statement is testimonial, then Step 2 must be addressed.

• Step 2—Determine if the declarant is unavailable to testify. If the declarant (i.e., the person who made the out-of-court statement) does not testify, the prosecution must establish the witness's unavailability. See "Is declarant unavailable?," ch. 5-E, §3.2.2. If the prosecution cannot do so, the statement will generally be inadmissible. See Crawford, 541 U.S. at 68. If the declarant is unavailable, then Step 3 must be addressed.
• Step 3—Determine if the defendant had a prior opportunity to cross-examine the unavailable declarant. See "Was there prior opportunity to cross-examine declarant?," ch. 5-E, §3.2.3. If the defendant had a prior opportunity to cross-examine, the statement may be introduced without violating the Confrontation Clause. See Crawford, 541 U.S. at 68. If the defendant did not have a prior opportunity to cross-examine the declarant, then Step 4 must be addressed.

• Step 4—Determine if the defendant waived the right of confrontation. If the defendant waives the right to confront a witness, the witness's testimonial hearsay statement may be introduced without violating the Confrontation Clause, even though the witness is not subject to cross-examination. See "Did defendant waive right of confrontation?," ch. 5-E, §3.2.4. If the defendant did not waive his right of confrontation, then Step 5 must be addressed.

• Step 5—Determine if the statement is exempt from Crawford's requirements. See "Is statement exempt from Crawford?," ch. 5-E, §3.2.5. If no established exemption applies, the statement is inadmissible as a violation of the

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