Purpose of the Confrontation Clause

What Is the Purpose of the Confrontation Clause? The confrontation clause provides that "in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." (U.S. Const., 6th Amend.) The phrase "witnesses against him" is not limited to in-court witnesses, but also applies to the admission of hearsay statements. (Crawford v. Washington (2004) 541 U.S. 36, 50-51.) The object of the confrontation clause is to "ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact." (Maryland v. Craig (1990) 497 U.S. 836, 845.) In Crawford v. Washington, supra, 541 U.S. 36, the United States Supreme Court overruled Ohio v. Roberts (1980) 448 U.S. 56, which had allowed out-of-court statements to be admitted at trial upon a showing of sufficient indicia of reliability. (Crawford, at pp. 60-67.) The Supreme Court concluded that with regard to nontestimonial hearsay, the Roberts approach was acceptable; such statements remain subject to state hearsay law and may be exempted from confrontation clause scrutiny entirely. (Crawford, at p. 68.) But where testimonial evidence is involved, "the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination." (Ibid.) The Supreme Court left for another day any effort to spell out a comprehensive definition of "testimonial." (Id. at p. 68.) However, it did state that testimonial statements are "'statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.'" (Id. at p. 52.) The court stated that "at a minimum" the term "testimonial" applies "to police interrogations." (Id. at p. 68.) In Davis v. Washington (2006) 547 U.S. 813, the Supreme Court elaborated on what constitutes testimonial statements to "determine more precisely which police interrogations produce testimony" subject to the confrontation clause. (Id. at p. 817.) In Davis, the trial court admitted into evidence a recording of the statements made by a domestic violence victim in response to a 911 telephone operator's questions, including circumstances at the house at the time of the call, the identity of the perpetrator, what he was doing, why he was at the house, whether he was armed, and a description of the assault. (Id. at pp. 817-818.) The Supreme Court concluded that the confrontation clause applied only to testimonial hearsay: "Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." (Id. at p. 822.) Interrogations "solely directed at establishing the facts of a past crime, in order to identify (or provide evidence to convict) the perpetrator" are clearly testimonial, "whether reduced to writing signed by the declarant or embedded in the memory (and perhaps notes) of the interrogating officer." (Id. at p. 826.) Interrogation during a 911 call is not testimonial because it is not designed primarily to establish or prove some past fact but to describe current circumstances requiring police assistance. (Id. at p. 827.) "We conclude from all this that the circumstances of the victim's interrogation objectively indicate its primary purpose was to enable police assistance to meet an ongoing emergency. She simply was not acting as a witness; she was not testifying. What she said was not 'a weaker substitute for live testimony . . . .'" (Id. at p. 828.) More recently, the United States Supreme Court considered statements made by a victim "to police officers who discovered him mortally wounded in a gas station parking lot" and who did not know the perpetrator's location. (Michigan v. Bryant (2011) U.S. 131 S.Ct. 1143, 1150, 1156) The court held that the statements were not testimonial and their admission did not violate the confrontation clause because the circumstances "objectively indicated" that "the 'primary purpose of the interrogation' was 'to enable police assistance to meet an ongoing emergency.'" (Id. at p. 1150.) The court observed that "the most important instances in which the Confrontation Clause restricts the introduction of out-of-court statements are those in which state actors are involved in a formal, out-of-court interrogation of a witness to obtain evidence for trial. " (Id. at p. 1155.) "When . . . the primary purpose of a police interrogation is to respond to an 'ongoing emergency,' its purpose is not to create a record for trial and thus is not within the scope of the Confrontation Clause." (Ibid.) In reaching its conclusion, Michigan v. Bryant established a "primary purpose" test. The "basic objective of the Confrontation Clause" is to "prevent the accused from being deprived of the opportunity to cross-examine the declarant about statements taken for use at trial." (Ibid.) Where "a statement is not procured with a primary purpose of creating an out-of-court substitute for trial testimony," "the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause." (Ibid.) "The inquiry is . . . objective because it focuses on the understanding and purpose of a reasonable victim in the circumstances of the actual victim . . . ." (Id. at p. 1161.)