CONFRONTATION In all criminal prosecutions, the accused shall enjoy the right … to be confronted...

CONFRONTATIONCONFRONTATION

In all criminal prosecutions, the In all criminal prosecutions, the accused shall enjoy the right … to accused shall enjoy the right … to be confronted with the witnesses be confronted with the witnesses

against him….against him….

Ohio v. RobertsOhio v. Roberts(1980) 448 U.S. 56(1980) 448 U.S. 56

If read literally, Confrontation Clause If read literally, Confrontation Clause would require exclusion of any statement would require exclusion of any statement made by a declarant not present at trial.made by a declarant not present at trial.

If thus applied, the Clause would If thus applied, the Clause would abrogate virtually every hearsay abrogate virtually every hearsay exception.exception.

Such a result has long been rejected as Such a result has long been rejected as unintended and too extreme.unintended and too extreme.

Ohio v. RobertsOhio v. Roberts(1980) 448 U.S. 56 (cont.)(1980) 448 U.S. 56 (cont.)

The Confrontation Clause was The Confrontation Clause was intended to exclude some hearsayintended to exclude some hearsay The Clause reflects a preference for The Clause reflects a preference for

face-to-face confrontation at trialface-to-face confrontation at trial A primary interest secured by the Clause A primary interest secured by the Clause

is the right of cross-examinationis the right of cross-examination


The Confrontation Clause envisions:The Confrontation Clause envisions: A personal examination and cross-examination A personal examination and cross-examination

of the witnessof the witness Where the accused has the opportunity to test Where the accused has the opportunity to test

the recollection of the witnessthe recollection of the witness And the opportunity to sift the conscience of And the opportunity to sift the conscience of

the witnessthe witness To compel the witness to face the jury and the To compel the witness to face the jury and the

accusedaccused To allow the jury to judge the demeanor of the To allow the jury to judge the demeanor of the

witness and whether the witness is worthy of witness and whether the witness is worthy of beliefbelief


There are competing interests that There are competing interests that may warrant dispensing with may warrant dispensing with confrontation at trial:confrontation at trial: The strong interest in effective law The strong interest in effective law

enforcementenforcement The development and precise The development and precise

formulation of the rules of evidence formulation of the rules of evidence applicable in criminal proceedingsapplicable in criminal proceedings


The Confrontation Clause restricts The Confrontation Clause restricts admissible hearsay in two ways:admissible hearsay in two ways:

1. It usually requires the prosecution 1. It usually requires the prosecution to produce or demonstrate the to produce or demonstrate the unavailability of the declarantunavailability of the declarant

2. It requires a showing of 2. It requires a showing of trustworthiness such that there is no trustworthiness such that there is no material departure from the reason material departure from the reason of the general ruleof the general rule


Certain hearsay exceptions rest upon Certain hearsay exceptions rest upon such solid foundations that such solid foundations that admission of virtually all evidence admission of virtually all evidence within the exception comports with within the exception comports with the substance of the constitutional the substance of the constitutional protection.protection.


Truism: hearsay rules and the Truism: hearsay rules and the Confrontation Clause are generally Confrontation Clause are generally designed to protect similar values designed to protect similar values and stem from the same roots.and stem from the same roots.

Responsive to the need for certainty Responsive to the need for certainty in the workaday world of conducting in the workaday world of conducting criminal trials.criminal trials.


The Confrontation Clause requires a The Confrontation Clause requires a showing that the witness is unavailableshowing that the witness is unavailable

Even then, admissibility subject to showing Even then, admissibility subject to showing indicia of reliability:indicia of reliability: 1. Reliability can be inferred, without more, in 1. Reliability can be inferred, without more, in

a case where the evidence falls within a “firmly a case where the evidence falls within a “firmly rooted hearsay exception”;rooted hearsay exception”;

2. or from a showing of “particularized 2. or from a showing of “particularized guarantees of trustworthiness”. guarantees of trustworthiness”.


The Sixth Amendment demands The Sixth Amendment demands substantial compliance with the substantial compliance with the purposes behind the confrontation purposes behind the confrontation requirement.requirement.

The opportunity to cross-examine at The opportunity to cross-examine at a prior proceeding, even absent a prior proceeding, even absent actual cross-examination, satisfies actual cross-examination, satisfies the Confrontation Clause the Confrontation Clause


Unavailability:Unavailability: Requires good faith effort to obtain Requires good faith effort to obtain

presence of witness at trialpresence of witness at trial No requirement of engaging in futile No requirement of engaging in futile

actsacts The lengths the prosecution must go is a The lengths the prosecution must go is a

question of reasonablenessquestion of reasonableness Prosecution bears the burden of proof in Prosecution bears the burden of proof in

establishing this predicateestablishing this predicate

Lilly v. VirginiaLilly v. Virginia(1999) 527 U.S. 116(1999) 527 U.S. 116

Cross examination is the “greatest Cross examination is the “greatest legal engine ever invented for the legal engine ever invented for the discovery of truth”discovery of truth”

Old 16Old 16thth and 17 and 17thth century practices of century practices of prosecution by ex parte affidavits prosecution by ex parte affidavits without the affiants being produced without the affiants being produced for trial is the evil at which the for trial is the evil at which the Confrontation Clause is aimed. Confrontation Clause is aimed.

Lilly v. VirginiaLilly v. Virginia(1999) 527 U.S. 116 (cont.)(1999) 527 U.S. 116 (cont.)

Declaration against penal interest is too Declaration against penal interest is too broad for meaningful Confrontation Clause broad for meaningful Confrontation Clause analysisanalysis

Covers three categories:Covers three categories: 1. voluntary admissions against declarant1. voluntary admissions against declarant 2. exculpatory evidence offered by defendant 2. exculpatory evidence offered by defendant

who claims declarant committed or was who claims declarant committed or was involved in the offenseinvolved in the offense

3. evidence offered by prosecution to establish 3. evidence offered by prosecution to establish guilt of an alleged accomplice of defendantguilt of an alleged accomplice of defendant


1.1. voluntary admissions against declarantvoluntary admissions against declarant-- if declarant is single defendant in case – statement is -- if declarant is single defendant in case – statement is

admissibleadmissible

-- if co-defendant case – Bruton issue-- if co-defendant case – Bruton issue

(clash of 5(clash of 5thth Amendment privilege not to testify vs. Amendment privilege not to testify vs. 66thth Amendment right to confront) Amendment right to confront)

-- redaction issue-- redaction issue

-- instruction issues-- instruction issues

-- separate juries, refrain from use of -- separate juries, refrain from use of statement or statement or separate trials separate trials

-- what happens if declarant -- what happens if declarant defendant testifies?defendant testifies?


2. exculpatory evidence offered by 2. exculpatory evidence offered by defendant who claims declarant defendant who claims declarant committed or was involved in the committed or was involved in the offenseoffense

Longtime rule prohibited use of this type of Longtime rule prohibited use of this type of statement because considered inherently statement because considered inherently unreliableunreliable

Now a defendant can offer such evidence – Now a defendant can offer such evidence – by definition, because a defendant offers it – by definition, because a defendant offers it – no confrontation clause issueno confrontation clause issue

But must meet reliability requirement But must meet reliability requirement


3. evidence offered by prosecution to 3. evidence offered by prosecution to establish guilt of an alleged accomplice establish guilt of an alleged accomplice of defendantof defendant

This type of statement is inherently unreliableThis type of statement is inherently unreliable Declarant is a person accused of the same Declarant is a person accused of the same

criminal conduct as defendantcriminal conduct as defendant Motive to shift blame is greatMotive to shift blame is great Effective way to lie is to mix falsehood with Effective way to lie is to mix falsehood with

truth, especially truth that seems particularly truth, especially truth that seems particularly persuasive because of its self-inculpatory persuasive because of its self-inculpatory naturenature


Accomplice statements that shift blame Accomplice statements that shift blame are so untrustworthy that confrontation is are so untrustworthy that confrontation is requiredrequired

Different than circumstances surrounding Different than circumstances surrounding co-conspirator statementsco-conspirator statements

When government is involved in producing When government is involved in producing accomplice statements, it is so similar to accomplice statements, it is so similar to ex parte affidavits practice that it must be ex parte affidavits practice that it must be subjected to adversarial testingsubjected to adversarial testing

Crawford v. WashingtonCrawford v. Washington(2004) 541 U.S. 36(2004) 541 U.S. 36

The right to confront accusers goes back The right to confront accusers goes back to Roman timesto Roman times

History supports two inferences about the History supports two inferences about the meaning of the Sixth Amendmentmeaning of the Sixth Amendment The Confrontation Clause is focused on The Confrontation Clause is focused on

preventing the evil of the use of ex parte preventing the evil of the use of ex parte examinations as evidence against the accusedexaminations as evidence against the accused

The Framers would not have allowed the The Framers would not have allowed the testimonial statements of a witness who did testimonial statements of a witness who did not appear at trial unless he was unavailable to not appear at trial unless he was unavailable to testify and the defendant had a prior testify and the defendant had a prior opportunity to cross examineopportunity to cross examine

Crawford v. WashingtonCrawford v. Washington(2004) 541 U.S. 36 (cont.)(2004) 541 U.S. 36 (cont.)

Witnesses against the accused are Witnesses against the accused are those who “bear testimony”those who “bear testimony”

Testimony is typically a solemn Testimony is typically a solemn declaration or affirmation made for declaration or affirmation made for the purpose of establishing or the purpose of establishing or proving a factproving a fact

Interrogators are those involved in Interrogators are those involved in investigative and prosecutorial investigative and prosecutorial functionsfunctions


Historically, all testimonial statements Historically, all testimonial statements are barred by the Confrontation Clause are barred by the Confrontation Clause unless its requirements are metunless its requirements are met

The Clause does not apply to hearsay The Clause does not apply to hearsay that is not testimonial e.g. business that is not testimonial e.g. business records exception or co-conspirator records exception or co-conspirator statementsstatements

Dying declaration is a historical Dying declaration is a historical deviationdeviation


Rule:Rule: Testimonial statements of witnesses Testimonial statements of witnesses

absent from trial may be admitted absent from trial may be admitted only where:only where: 1. the witness is unavailable, and1. the witness is unavailable, and

2. the defendant has had a prior 2. the defendant has had a prior opportunity to cross-examine the opportunity to cross-examine the witnesswitness


Ohio v. Roberts overruledOhio v. Roberts overruled (firmly rooted exception or (firmly rooted exception or

particularized reliability)particularized reliability) Dispensing with confrontation because Dispensing with confrontation because

testimony is obviously reliable is akin to testimony is obviously reliable is akin to dispensing with jury trial because the dispensing with jury trial because the accused is obviously guiltyaccused is obviously guilty

Reliability is an amorphous, if not Reliability is an amorphous, if not entirely subjective, conceptentirely subjective, concept

Forfeiture by Wrongdoing Forfeiture by Wrongdoing

Giles v. California 554 U.S. ___; 128 Giles v. California 554 U.S. ___; 128 S.Ct. 2678 (2008)S.Ct. 2678 (2008) More than the act of killing the declarant More than the act of killing the declarant

is requiredis required The defendant’s intent is a key factorThe defendant’s intent is a key factor To avoid the requirement of To avoid the requirement of

confrontation, it must be shown that the confrontation, it must be shown that the defendant killed declarant to prevent defendant killed declarant to prevent her from testifyingher from testifying

Forfeiture by Wrongdoing (cont.)Forfeiture by Wrongdoing (cont.)

Evid. Code sec. 1350:Evid. Code sec. 1350: Must be a serious felony Must be a serious felony Unavailable DeclarantUnavailable Declarant Clear/convincing Clear/convincing

evidence linking partyevidence linking party To prevent prosecution To prevent prosecution

or arrest of partyor arrest of party Death by homicide or Death by homicide or

kidnapping of declarantkidnapping of declarant Memorialized in a tape Memorialized in a tape

recording or notarized recording or notarized writingwriting

By a law enforcement By a law enforcement officialofficial

Indicia of trustworthiness Indicia of trustworthiness must be presentmust be present

Statement is relevantStatement is relevant Independent Independent

corroborative evidence corroborative evidence linking defendant to linking defendant to crimecrime

10 days notice or good 10 days notice or good cause showing cause showing

Requires hearing outside Requires hearing outside presence of jurypresence of jury

See People v. Zambrano See People v. Zambrano (2007) 41 Cal.4(2007) 41 Cal.4thth 1082, 1082, 1143-11471143-1147

Forfeiture by Wrongdoing (cont.)Forfeiture by Wrongdoing (cont.)

People v. Banos (2009) 180 Cal.App.4People v. Banos (2009) 180 Cal.App.4thth 483 483 Thorough analysis of Thorough analysis of CrawfordCrawford, , GilesGiles, ,

DavisDavis, and , and HammondHammond in the context of a in the context of a DV murder case (does not cover §1350)DV murder case (does not cover §1350)

Some Forfeiture by Wrongdoing rules:Some Forfeiture by Wrongdoing rules: Preventing witness from testifyingPreventing witness from testifying Dissuading witness from reporting (can infer)Dissuading witness from reporting (can infer) Silencing witness need not be sole motiveSilencing witness need not be sole motive

Davis v. WashingtonDavis v. Washington(2006) 547 U.S. 813(2006) 547 U.S. 813

Test for whether a statement is Test for whether a statement is testimonial:testimonial: Is primary purpose of interrogation to Is primary purpose of interrogation to

meet an ongoing emergency?meet an ongoing emergency? Is primary purpose of interrogation to Is primary purpose of interrogation to

establish or prove past events establish or prove past events potentially relevant to a later criminal potentially relevant to a later criminal prosecution?prosecution?

Davis v. WashingtonDavis v. Washington(2006) 547 U.S. 813 (cont.)(2006) 547 U.S. 813 (cont.)

What is happening?What is happening?

oror

What happened?What happened?

Melendez-Diaz v. MassachusettsMelendez-Diaz v. Massachusetts(2009) ___ U.S. ___; (2009) ___ U.S. ___;

129 S.Ct. 2527129 S.Ct. 2527 ““Certificates” that state the substance Certificates” that state the substance

tested is contains cocaine.tested is contains cocaine.

Simply offered as “prima facie” evidence Simply offered as “prima facie” evidence of the nature of the substance – analysts of the nature of the substance – analysts not produced as witnessesnot produced as witnesses

Nature of the substance is an element the Nature of the substance is an element the prosecution must prove to convictprosecution must prove to convict

Melendez-Diaz v. Massachusetts Melendez-Diaz v. Massachusetts (cont.)(cont.)

Name of document does not change the Name of document does not change the fact that they are testimonial affidavitsfact that they are testimonial affidavits

Little doubt that they fall within Little doubt that they fall within Crawford because they are functionally Crawford because they are functionally identical to live, in-court testimony, identical to live, in-court testimony, doing precisely what a witness does on doing precisely what a witness does on direct examination direct examination

Thus, under Crawford, unless analysts Thus, under Crawford, unless analysts are unavailable and petitioner had prior are unavailable and petitioner had prior opportunity to cross, he is entitled to opportunity to cross, he is entitled to confront at trialconfront at trial


We do not hold that anyone whose We do not hold that anyone whose testimony is relevant in establishing the testimony is relevant in establishing the chain of custody, the authenticity of the chain of custody, the authenticity of the sample, or the accuracy of the testing sample, or the accuracy of the testing device, must appear as part of the device, must appear as part of the prosecutor’s caseprosecutor’s case Gaps in the chain normally go to the weight, Gaps in the chain normally go to the weight,

not the admissibilitynot the admissibility But, what testimony is offered must be liveBut, what testimony is offered must be live Documents re equipment maintenance may Documents re equipment maintenance may

well qualify as non-testimonial recordswell qualify as non-testimonial records


Dissent arguments:Dissent arguments: Sweeping “new” rule eliminates 90 years of Sweeping “new” rule eliminates 90 years of

rules covering the admission of scientific rules covering the admission of scientific evidence – 35 states and 6 Federal Circuitsevidence – 35 states and 6 Federal Circuits

Response: only 30 years worth of precedent and Response: only 30 years worth of precedent and most of it relies on Ohio v. Robertsmost of it relies on Ohio v. Roberts

Instead, the dissent seeks to overturn precedent Instead, the dissent seeks to overturn precedent by resurrecting Roberts a mere 5 years after it by resurrecting Roberts a mere 5 years after it was rejected in Crawford was rejected in Crawford


Further arguments by respondent and dissent:Further arguments by respondent and dissent: Analysts are not “accusatory” witnesses – they do Analysts are not “accusatory” witnesses – they do

not directly accuse defendant of wrongdoing – their not directly accuse defendant of wrongdoing – their testimony is only inculpatory when combined with testimony is only inculpatory when combined with other evidence linking defendant to contrabandother evidence linking defendant to contraband

Response: Confrontation clause envisions 2 classes Response: Confrontation clause envisions 2 classes of witnesses – those against defendant and those of witnesses – those against defendant and those for him. The prosecution must call the former, the for him. The prosecution must call the former, the defense may call the latter.defense may call the latter.

There is no 3There is no 3rdrd class of witnesses – those helpful to the class of witnesses – those helpful to the prosecution, but somehow immune to confrontationprosecution, but somehow immune to confrontation


Further arguments by respondent and dissent:Further arguments by respondent and dissent: Analysts are not “conventional” witnesses – b/c not Analysts are not “conventional” witnesses – b/c not

recalling past events – merely reporting on recalling past events – merely reporting on contemporaneous observationscontemporaneous observations

Also have not observed any crime nor human actionAlso have not observed any crime nor human action Also no report in response to interrogationAlso no report in response to interrogation Response: Response:

1) affidavits completed after testing complete – do not fit 1) affidavits completed after testing complete – do not fit within Davis; within Davis;

2) no authority for this position – is a police officer’s report 2) no authority for this position – is a police officer’s report describing crime scene admissible absent confrontation? describing crime scene admissible absent confrontation? This novel exception would exempt all expert witnesses This novel exception would exempt all expert witnesses from confrontation; from confrontation;

3) voluntary witness is no less a witness against defendant 3) voluntary witness is no less a witness against defendant – in any event testing and certificate were in response to – in any event testing and certificate were in response to police requestpolice request


Further arguments by respondent and Further arguments by respondent and dissent:dissent: Analysts testimony is the result of Analysts testimony is the result of

“neutral, scientific testing” unlike “neutral, scientific testing” unlike recounting historical events which are recounting historical events which are prone to distortion or manipulationprone to distortion or manipulation

Response: Response: This argument is little more than invitation to This argument is little more than invitation to

return to overruled decision in Robertsreturn to overruled decision in Roberts Moreover, confrontation designed to weed out Moreover, confrontation designed to weed out

fraudulent and incompetent scientific analyst fraudulent and incompetent scientific analyst


Further arguments by respondent Further arguments by respondent and dissent:and dissent: Analysts affidavits are akin to official Analysts affidavits are akin to official

and business recordsand business records Response: Response:

Business records are not admissible if the Business records are not admissible if the business activity is the production of business activity is the production of evidence for use at trialevidence for use at trial

Business records fit within the exception Business records fit within the exception when they are created for the administration when they are created for the administration of an entity’s affairs of an entity’s affairs


Further arguments by respondent and Further arguments by respondent and dissent:dissent: Should find no confrontation violation b/c Should find no confrontation violation b/c

defendant had the ability to subpoena the defendant had the ability to subpoena the analystsanalysts

Response:Response: Power to produce evidence is no substitute for the Power to produce evidence is no substitute for the

right of confrontationright of confrontation Converting the prosecutor’s duty to the defendant’s Converting the prosecutor’s duty to the defendant’s

privilege shifts the consequences of adverse-witness privilege shifts the consequences of adverse-witness no-shows from the State to the accusedno-shows from the State to the accused


Further arguments by respondent Further arguments by respondent and dissent:and dissent: The Confrontation Clause requirements The Confrontation Clause requirements

should be relaxed to accommodate the should be relaxed to accommodate the “necessities of the trial and adversarial “necessities of the trial and adversarial world”world”

It may true that Confrontation Clause It may true that Confrontation Clause makes the prosecution of criminals more makes the prosecution of criminals more burdensome, but so does right to trial by burdensome, but so does right to trial by jury and 5jury and 5thth Amendment privilege Amendment privilege


Note: Vigorous and heated debate Note: Vigorous and heated debate within the Court – has a pointed, within the Court – has a pointed, almost personal tonealmost personal tone

Note: Majority opinion of 4 joined by Note: Majority opinion of 4 joined by 1 in concurring opinion – dissent of 41 in concurring opinion – dissent of 4

Note: Chief Justice with dissentNote: Chief Justice with dissent

Bullcoming v. New MexicoBullcoming v. New Mexico(2011) 564 U.S. ____ (2011) 564 U.S. ____

Forensic analyst certifies test results Forensic analyst certifies test results showing blood alcohol level above showing blood alcohol level above aggravated levelaggravated level

Analyst did not testify because on Analyst did not testify because on unpaid leave for undisclosed reasonsunpaid leave for undisclosed reasons

No showing of unavailabilityNo showing of unavailability Another analyst called to testify to Another analyst called to testify to

first analyst’s records of testingfirst analyst’s records of testing

Bullcoming v. New MexicoBullcoming v. New Mexico(cont.)(cont.)

Court reverses New Mexico Supreme Court reverses New Mexico Supreme Court Court

Justice Ginsburg writes opinion for Justice Ginsburg writes opinion for five Justices – various concurrences – five Justices – various concurrences –

Holds that First analyst’s report is Holds that First analyst’s report is testimonialtestimonial Prepared for use in a prosecution and Prepared for use in a prosecution and

introduced to prove a fact in a criminal introduced to prove a fact in a criminal trialtrial


Holds that First analyst’s report is Holds that First analyst’s report is testimonial:testimonial: Prepared for use in a prosecution and Prepared for use in a prosecution and

introduced to prove a fact in a criminal trialintroduced to prove a fact in a criminal trial Confrontation Clause forbids 2Confrontation Clause forbids 2ndnd analyst’s analyst’s

testimony about report because did not testimony about report because did not perform or observe 1perform or observe 1stst analyst do the test analyst do the test

Defendant had right to cross 1Defendant had right to cross 1stst analyst analyst unless unavailable and pretrial opportunity unless unavailable and pretrial opportunity to crossto cross


Rejects idea that test result is simply a Rejects idea that test result is simply a number that calls for no interpretation on number that calls for no interpretation on 11stst analyst’s part analyst’s part

Comparative reliability of analyst’s Comparative reliability of analyst’s certification of test results does not excuse certification of test results does not excuse compliance with confrontation rightscompliance with confrontation rights

Qualifying 2Qualifying 2ndnd analyst as expert does not analyst as expert does not get around Clause requirements:get around Clause requirements: Would not expose lapses or lies of 1Would not expose lapses or lies of 1stst analyst analyst Would not explain unpaid leave – Would not explain unpaid leave –

incompetence, evasiveness or dishonesty?incompetence, evasiveness or dishonesty?


In California: In California: People v. Geier (2007) 41 Cal. 4People v. Geier (2007) 41 Cal. 4thth 555 - 555 -

DNA analyst’s notes, report and analysis DNA analyst’s notes, report and analysis not testimonial b/c not incriminating, not testimonial b/c not incriminating, just part of her job – results could have just part of her job – results could have been either inculpatory or exculpatory –been either inculpatory or exculpatory –interpreting Davis v. Washingtoninterpreting Davis v. Washington

Cal. Supreme Court has now granted Cal. Supreme Court has now granted review in at least 7 post Melendez-Diaz review in at least 7 post Melendez-Diaz cases decided by the Courts of Appeal cases decided by the Courts of Appeal

CONFRONTATION In all criminal prosecutions, the accused shall enjoy the right … to be confronted...

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Transcript of CONFRONTATION In all criminal prosecutions, the accused shall enjoy the right … to be confronted...