CJST 2218 Procedure 8 Lecture Notes

Chapter 8: The Confrontation Clause and Exceptions to the Hearsay Rule:

Hearsay and the Confrontation Clause:
- In criminal trials, the admission of out-of-court statements presents not only issues under
relevant hearsay rules but also potential conflict with the 6th Amendment’s Confrontation
Clause
- The Confrontation Clause in the U.S Constitution entitles a defendant in a criminal case
to demand witnesses to testify against him in his presence
- If an out-of-court statement is admitted as evidence against the accused, the person
making that statement is a “witness” who isn’t “confronting” the accused
- Prior to 1965, the Confrontation Clause applied only to federal criminal trials and
wasn’t extended to state criminal cases

Extension of the Confrontation Clause:
- In Pointer v. Texas (1965), SCOTUS held that the 14th Amendment’s Due Process
Clause made the Confrontation Clause binding in state criminal trials
- A state might have an evidentiary rule that permits admissibility of hearsay
evidence in criminal cases for reasons unique to that state’s evidentiary system
- In such a case, the state’s justification for admission if the hearsay evidence must
pass the Confrontation Clause test
- In California v. Green 91970), SCOTUS held that hearsay rules and the Confrontation
Clause both recognize the importance of face-to-face contact between witnesses and
the accused and the crucial role of cross-examination
- Early Confrontation Clause cases looked to the hearsay exceptions as appropriate
“indicia of reliability” for admitting out-of-court statements in criminal trials

Hearsay/Confrontation Clause Solutions:
The following questions will help identify the “correct” solution about the admissibility of
an out-of-court statement:
- Is the statement hearsay?
- If it is hearsay, is it “testimonial?”
- If it is testimonial, the Confrontation Clause requires the person to be in court and
available for cross-examination
- If it’s not testimonial, no Confrontation Clause issue arises
- Does the forfeiture by wrongdoing rule apply?
- If the statement isn’t testimonial, does a hearsay exception apply to make it admissible?

Crawford v. Washington (2004):
- SCOTUS held it’s no longer enough that out-of-court statements have some “guarantee
of trustworthiness”
- Rather, the guarantee comes from the defendant’s right to confront witnesses
against him/her
A witness’s testimonial statement is thus inadmissible unless:
- The witness is available to testify and appears in court