Confrontation Clause - Out of Court Statements

In Crawford v. Washington, 541 U.S. 36 (2004) the United States Supreme Court reconsidered the meaning of the Confrontation Clause of the Sixth Amendment for the first time since Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980). In doing so, the Court examined the historical background behind the Sixth Amendment's Confrontation Clause. See Crawford, 541 U.S. at 42-50. The Court "rejected the view that the Confrontation Clause applies of its own force only to in-court testimony," and found that it may apply to out-of-court statements as well. Id. at 50-51. It further noted that the Clause "applies to witnesses against the accused--in other words, those who bear testimony." Id. at 51. Ultimately, the Court determined that before certain out-of-court statements may be admitted into evidence, two criteria must be established: (1) the declarant must be unavailable to testify; (2) the defendant must have had a prior opportunity for cross-examination of the declarant. See Crawford, 541 U.S. at 68. However, the Court noted that not all hearsay statements implicate such heightened concern. See id. at 51. Specifically, the Court emphasized that the Confrontation Clause is most concerned with statements that are "testimonial" in nature. Id. While the Court did not delineate the parameters of declarations that are "testimonial," it "noted three formulations of core testimonial evidence: (1) ex parte in-court testimony, including affidavits, custodial examinations, and prior testimony not subject to cross-examination; (2) extrajudicial statements contained in formalized material such as depositions; (3) statements made under circumstances that would cause a reasonable witness to believe they could be used at trial." United States v. Brun, 416 F.3d 703, 706 (8th Cir. 2005) (citing Crawford, 541 U.S. at 51-52).