A Guide to the Confrontation Clause, 13 SCBJ, SC Lawyer, September 2013, #2

Author:Geoffrey Burkhart

A Guide to the Confrontation Clause

Vol. 25 Issue 2 Pg. 20

South Carolina Bar Journal

September, 2013

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0 Geoffrey Burkhart

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Nine years after Crawford v. Washington, Confrontation Clause jurisprudence is once again a tangle of tests and factors.1 This articleclarifies Supreme Court case law and guides lawyers and judges in their analysis of confrontation problems.


\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The Sixth Amendment contemplates two kinds of witnesses—those for the defendant, and those against him.2 The Confrontation Clause deals with the latter: “[i]n all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.”3 The goal of the Clause is to determine when the prosecution may introduce an out-of-court statement at trial, and when nothing less than an opportunity for cross-examination of a live witness will suffice.4

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In 1980, the United States Supreme Court held in Ohio v. Roberts that the prosecution must present a witness whose statement it seeks to introduce, unless it can show that (1) the witness is unavailable; and (2) the statement falls within a hearsay exception or possesses “particularlized guarantees of trustworthiness.”5 Over time, judges and scholars became concerned that the Roberts Court strayed from the original meaning of the Confrontation Clause and conflated confrontation and modern hearsay rules.6

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Crawford v. Washington

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In 2004, the Supreme Court reexamined the right to confrontation in Crawford v. Washington.7 The only factual issue at trial in that case was whether the defendants tabbed the victim in self-defense.8 The prosecution sought to introduce a recording of Crawford’s wife’s interrogation, in which she stated that the victim was empty-handed at the time of the incident.9 The trial court admitted the statement, finding it reliable under Roberts.10

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The Supreme Court found the Roberts reliability test vague and unpredictable, because the results depended on an individual judge’s assessment of a statement’s reliability.11 Thus, the test often admitted statements the Clause intended to exclude and excluded statements the Clause intended to admit.12 Relying on the Clause’s lengthy pre-Roberts history, the Court reached two conclusions: First, the Clause is concerned with testimonial statements.13 The Court left the task of defining “testimonial” for another day, but noted that, at the very least, it includes formal declarations, such as grand jury testimony and statements made during police interrogations.14 Second, the Clause bars admission of the testimonial statements of a witness who does not appear at trial, unless (1) the witness is unavailable to testify; and (2) the defendant had a prior opportunity to cross-examine the witness.15

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Applying this test, the Court determined that Crawford’s wife’s statement was testimonial, because it was given during a police interrogation.16 Because Crawford had no prior opportunity to cross-examine his wife, the Court held that her statement was inadmissible.17


\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The Supreme Court has decided seven confrontation cases since Crawford. Six focused on the meaning of testimonial. The first three—Davis v. Washington, Hammon v. Indiana and Michigan v. Bryant—concerned out-of-court statements given during police interrogation.18 The second three—Melendez-Diaz v. Massachusetts, Bullcoming v. New Mexico and Williams v. Illinois—concerned out-of-court statements regarding forensic testing.19 The final case, Giles v. California, addressed the forfeiture-by-wrongdoing exception.20

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Police interrogation: Davis, Hammon and Bryant

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The prosecutors in Davis introduced a 911 recording in which Davis’s ex-girlfriend complained that Davis punched her.21 To determine whether her statement was testimonial, the Supreme Court devised the primary purpose test: if a police interrogation’s primary purpose is to meet an ongoing emergency, the statement is nontestimonial, but if the primary purpose is to prove past events for possible use in future criminal prosecution, the statement is testimonial.22 The Court found that Davis’s ex-girlfriend called 911 because of an ongoing emergency, not to prove some past event for future prosecution.23 The statement was therefore nontestimonial and admissible under the Confrontation Clause.24

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In Hammon, the companion case to Davis, the prosecution introduced an affidavit in which Hammon’s wife stated that Hammon hit her and prevented her from leaving their home.25 The Supreme Court applied the primary purpose test and found that there was no ongoing emergency, because police had separated the couple by the time Hammon’s wife signed the affidavit.26 Although the statement was not given during a formal police interrogation as in Crawford, the primary purpose was to investigate past conduct and determine if a crime had occurred.27

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In Bryant, police officers testified that the victim—who died before trial—told them that “Rick” shot him.28 The Supreme Court applied an expanded version of the primary purpose test, noting that courts must “look to all of the relevant circumstances” when determining whether a statement is testimonial.29 The Court found that the statement was given during an ongoing emergency, and was therefore nontestimonial, because the shooter’s location was unknown, the officers were still assessing the situation, and the victim was mortally wounded.30

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Forensic reports: Melendez-Diaz, Bullcoming and Williams

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The prosecution in Melendez-Diaz introduced a laboratory analyst’s notarized affidavit, which confirmed that the substance police recovered from the defendant was cocaine.31 The Supreme Court found that the statement was testimonial, because its sole purpose was to provide evidence at trial of the substance’s composition, and because affidavits fall into the “core class of testimonial statements” governed by the Confrontation Clause.32

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Bullcoming presented a twist on Melendez-Diaz. There, a state laboratory tested Bullcoming’s blood-alcohol level and determined that it exceeded the legal limit.33 The prosecution introduced anunnotarized report confirming the test results through an analyst who was familiar with the laboratory’s testing procedures, but who had not performed the test in that case.34 The Supreme Court determined that the statement was testimonial, even though the report was unnotarized.35 The Court further held that Bullcoming had a right to confront the analyst who made the statement, because cross-examining a surrogate witness could not expose the analyst’s lapses or lies.36

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Melendez-Diaz and Bullcoming left open a question: Does a Confrontation Clause violation occur when an expert witness, who did not perform any forensic tests, bases her opinion on a scientific report that is not admitted into evidence?37 In addressing that question, the Williams Court split three ways.38 In that case, the prosecution’s expert witness testified that a DNA profile taken from a sexual assault victim’s vaginal swab matched the defendant’s DNA profile.39 The expert did not perform or observe the DNA test of the vaginal swab, but rather relied on a report produced by an outside laboratory.40 The report was not admitted into evidence.41

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The plurality opinion, written by Justice Alito, reached two conclusions. First, the contested statement—namely, that the DNA profile was produced from semen taken from the victim’s vaginal swab—was not admitted for the truth of the matter asserted.42 Rather, it was merely a premise for the State’s question about whether the DNA profiles matched.43 Second, the plurality held that the statement was nontestimonial, because the report’s “primary purpose was to catch a dangerous rapist who was still at large, ” not for use as evidence at trial.44 The Court therefore found no Confrontation Clause violation.45

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In his opinion concurring in the judgment, Justice Thomas found the statement was admitted for the truth of the matter asserted, because the expert’s opinion ultimately turned on the truth of the report’s findings.46 Justice Thomas rejected the plurality’s reliance on the primary purpose test, but still found the statement nontestimonial, because the report, which was neither sworn nor certified, lacked the solemnity and formality of an affidavit.47

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In her dissent, Justice Kagan agreed with Justice Thomas that the statement was admitted for the truth of the matter asserted.48 Justice Kagan further found that it was permissible for the expert to testify that the profiles she received matched.49 But when the expert testified that the victim’s vaginal swab contained Williams’ DNA, Williams was deprived of his right to confront the witnesses against him, namely, the person who performed the DNA testing.50

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Forfeiture by wrongdoing: Giles

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In Giles, the defendant testified that he killed his ex-girlfriend in self-defense.51 The prosecution introduced a statement taken from his ex-girlfriend three weeks before the shooting, in which she said that Giles choked, punched and threatened to kill her.52 The prosecution conceded that the statement was testimonial, but argued that it was still...

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