Confrontation Clause Simplified
By: LN on Aug 27, 2012 01:12:17 PM
I. The Confrontation Clause Is No Bar Against Admission Of An Out Of Court Statement Against A Criminal Defendant If:
 The Statement Is NOT Offered For The Truth (Crawford fn. 9)
 The Declarant appears for cross-examination at trial. (Calif. v. Green)
 The declarant is unavailable to testify at trial, and the defendant had a past chance to cross-examine the declarant about the statement (Calif. v. Green)
 The defendant forfeited the confrontation right by wrongdoing intended to prevent the declarant from testifying
 If the statement was a dying declaration (Crawford fn.6)
 If the statement was not “testimonial”

II. NonTestimonial Statements include the following:
 “Casual remarks to an acquaintance” (Crawford; Davis)
 “Off-hand, overheard remarks (Crawford)
 Statements in furtherance of a conspiracy (Crawford)
 Some business records (Crawford)
 Statements “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 and ongoing emergency” (Davis)

III. Testimonial Statements include the following:
 “solemn declarations…made for the purpose of establishing or proving some fact” (Crawford; Davis)
 “prior testimony at a preliminary hearing, before a grand jury, or at a former trial” (Crawford)
 Statements procured with the “involvement of government officers … with an eye toward trial” (Crawford fn. 7)
 Statements “made in the course of police interrogation … when the circumstances objectively indicate that there is no ... ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” (Davis)

IV. The Davis Primary-Purpose Test Suggests A Statement Is Testimonial When Made During Police Interrogation And When:

 It “described past events” rather than “events as they were actually happening”
 The declarant was not facing an ongoing emergency
 The statement was needed “simply to learn … what had happened in the past,” not “to resolve the present emergency”
 The statement bore indicia of “formality” such as:
o Taken in calm circumstances when the declarant was out of danger
o Taken in the stationhouse
o Involving a “series of questions”
o Recorded by a police interrogator
o Taken while declarant was in custody and following Miranda warnings
o Involving physical separation of the declarant from the suspect
o Made in circumstances in which “deliberate falsehood” risked “severe consequences”
 The statement served as “an obvious substitute for live testimony, because it did precisely what a witness does on direct examination 

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