What Is the Confrontation Clause ?
What Is the Confrontation Clause of the Sixth Amendment ?
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 object of that 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 (2004) 541 U.S. 36, the defendant had objected to the introduction of the tape-recorded statement of a witness he had had no opportunity to cross-examine.
The Supreme Court held that the defendant's Sixth Amendment right to be confronted by the witnesses against him had been violated and that the confrontation clause did not allow admission of "testimonial statements" of a witness who did not appear at trial "unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." (Crawford, supra, 541 U.S. at pp. 51-54.)
The court did not precisely define the term "testimonial statements," but described the "core class" as including "'ex parte in-court testimony or its functional equivalent -- that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially,' ; '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 pp. 51-52.)
Subsequently, in Davis v. Washington (2006) 547 U.S. 813 (Davis), the court considered whether the admission of (1) a recording of a 911 call made by a victim of domestic violence or (2) a statement made by a second victim of domestic violence to officers violated the confrontation clause.
The court concluded that the statements the first victim made to the 911 operator were not testimonial, but that the statement given to the officers by the second victim was testimonial.
The court explained:
"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." (547 U.S. at p. 822.)
The court further noted that in speaking to the 911 operator, the victim "was speaking about events as they were actually happening, rather than 'describing past events' ." (Id. at p. 827.)
In Crawford, the United States Supreme Court concluded that nontestimonial hearsay remains subject to state hearsay law and may be exempted from Confrontation Clause scrutiny entirely. (Crawford, supra, 541 U.S. 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.)
While the Supreme Court left for another day any effort to spell out a comprehensive definition of "'testimonial'" (ibid.), it stated that it includes "'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.)
In Davis v. Washington (2006) 547 U.S. 813, the Supreme Court elaborated on what constitutes testimonial statements. (Id. at p. 822.)
In concluding that questioning during a 911 call is not testimonial hearsay, the Supreme Court held that, "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." (Ibid.)
Interrogations "solely directed at establishing the facts of a past crime, in order to identify (or produce evidence to convict) the perpetrator" are clearly testimonial. (Id. at p. 826.)
In People v. Geier (2007) 41 Cal.4th 555, the California Supreme Court held that a DNA report, testified to by the laboratory director who did not conduct the DNA test but oversaw testing and supervised the laboratories' six analysts who did the testing, was not testimonial for Crawford purposes because the observations in the report were a "contemporaneous recordation of observable events rather than the documentation of past events." (Geier, supra, 41 Cal.4th at p. 605.)
The Court emphasized that "the crucial point is whether the statement represents the contemporaneous recordation of observable events" and not whether "it might reasonably be anticipated that the statement will be used at trial." (Id. at pp. 606-607.)
Records of the laboratory protocols used and the results acquired are not accusatory. "Instead, they are neutral, having the power to exonerate as well as convict. " (Id. at p. 601.) Furthermore, the results were a business record and that even if they were hearsay, Gutstadt could rely on them for the purpose of formulating his opinion as a coroner. (Id. at p. 608, fn. 13.)