The Balanced Approach


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Confrontation clause issues

from the film "Anger Management"

from the film "Anger Management"

6th amendment Confrontation Clause

In general, a defendant has a constitutional 6th am right to confront a witness and cross-examine that witness face-to-face.

If the declarant is testifying, the confrontation clause obviously does not apply. 

The issue is when the declarant does not testify and is therefore not subject to cross.  So if you have that situation, a statement will not be admissible if the (1) statement is being used against the defendant (2) the statement is testimonial in nature and (3) the accused never had an opportunity before (and now) to cross examine that statement. 

So what is a testimonial statement?

Testimonial statements include:

-       police interviews or interrogations that are conducted with the primary purpose to collect evidence of stuff that happened in the past in preparation of a prosecution.

-       Forensic reports, affidavits being offered for the truth of the matter or the truth of the results etc. Those reports must be admitted through the person who prepared it.  A supervisor for that preparer is NOT a substitute.  The person/scientist/declarant needs to be there. 

What is not testimonial

- 911 calls

- statements made during an ongoing emergency

Some other noteworthy exceptions to the confrontation clause in general:

1. Child witnesses.  If the witness is a child, and testifying face-to-face with the defendant (her abuser) would be traumatic.  Instead the testimony would be in camera.  No face-to-face, but cross examination is still permitted via closed-circuit television.

2. The disruptive D.  If the D is disruptive during trial, and he is removed, he can’t argue 6th amendment violation and if the D voluntarily walk out, can’t should 6th am violation

3. The co-defendant’s confession when the two defendants are being tried together.  If a co-defendant asserts the 5th amendment but made a confession, or there is a recorded confession then the defendant doesn’t actually have an opportunity to cross examine his co-defendant face to face the confession is inadmissible.  But if the statements implicating the non-confessing defendant can be wholly redacted, it can be admitted.  

If the co-defendants are not tried together, a taped non-testimonial confession of the other co-defendant can be admissible as a statement against interest.  This happened in one of my cases!  My client bragged in a jailhouse recording with a snitch about committing a crime, and named all the other players involved in that recording.  All defendants were tried separately.  Because the recording was non-testimonial, it was found to not violate the 6th as to the other defendants.  And my client's recorded confession was admissible in all the other defendant’s trials as a statement against my client’s interest (even though it implicated the other defendant's too).  He was unavailable given his 5th amendment privilege to not testify or incriminate himself and it was admitted as a statement against his interest.


Amy Parekh