Hearsay Evidence and the Sixth Amendment Confrontation Clause

Introduction

The primary objective of the American constitutional provision known as the Sixth Amendment's Confrontation Clause was the prevention of ex parte affidavit depositions, which were employed against prisoners in place of personal questioning and cross-examination of witnesses (CRS/LII Annotated Constitution, Sixth Amendment). This paper examines several key dimensions of the Clause:

First, the confrontation right is one of the fundamental guarantees of liberty and life. Second, the Sixth Amendment's Confrontation Clause secures a key aspect of the adversarial trial process (Sixth Amendment — Rights of Accused in Criminal Prosecutions). Third, the paper addresses challenging questions pertaining to the limits and scope of these rights.

A set of principles may be derived from available Maryland appeals court and U.S. Supreme Court cases connected with the Clause, which can aid busy practitioners or trial judges in achieving speedy and accurate analysis of potential issues — even in the midst of trial, where there is no room for calm deliberation.

One issue that continues to perplex courts is whether hearsay declarants — whose out-of-court statements are offered as proof against the defendant — are also "witnesses," despite never appearing in court to provide their testimony and thereby escaping cross-examination. Under the current state of the law, in most situations, primary confrontation rights are settled effectively. This paper analyzes how the Clause is employed in the present-day court system and considers its relationship to criminal justice ideals.

Key Case Examples

Crawford v. Washington (2004) — The petitioner in this case was tried for assault and attempted murder. Washington State sought to introduce his wife Sylvia's recorded statement, made during a law enforcement interrogation, as proof that the purpose of the stabbing was not self-defense. Sylvia did not testify at trial due to the State's marital privilege. The petitioner contended that admission of the recorded statement violated his Sixth Amendment confrontation right. The U.S. Supreme Court reversed the lower court's decision and remanded the case for further proceedings consistent with its opinion (LII / Legal Information Institute, 2004).

Davis v. Washington (2006) — Michelle McCottrey called 911 while in a physical altercation with her boyfriend, the defendant Adrian Davis. Speaking in a panicked state, and in response to the 911 operator's questions, she identified Davis as the person hitting her. Davis was charged with felony violation of a domestic no-contact order. The central issue in the case was determining when declarations made to a 911 operator or at a crime scene are "testimonial," and thus subject to Confrontation Clause requirements. The 911 call recording was admitted at trial over the defendant's objections. Davis was convicted and appealed, but both the lower appeals court and Washington's Supreme Court affirmed the conviction (LII / Legal Information Institute, 2006).

Melendez-Diaz v. Massachusetts (2009) — The State of Massachusetts tried the defendant for cocaine distribution and trafficking. The central question was whether laboratory analysis certificates could be considered "testimonial," making their authors "witnesses" subject to defendant confrontation under the Sixth Amendment. At trial, analysis certificates prepared by lab analysts were introduced to prove that the substance seized from the defendant was cocaine; the analysts themselves did not testify. The defendant was convicted and appealed, arguing that the certificates were testimonial and their admission violated his constitutional confrontation rights. The Massachusetts appellate court affirmed. On further appeal, the U.S. Supreme Court identified six grounds for ruling that admission of the certificates did not violate the Confrontation Clause (LII / Legal Information Institute, 2009).

Michigan v. Bryant (2011) — Detroit police officers dispatched to the parking lot of a gas station found wounded victim Anthony Covington, who told them he had been shot outside Bryant's residence by Bryant. Officers testified to Covington's statements at trial, and Bryant was convicted of murder. Bryant challenged the officers' testimony as testimonial hearsay. Michigan's Supreme Court ultimately reversed his conviction, holding that the Confrontation Clause, as interpreted in Crawford v. Washington, rendered Covington's statements inadmissible testimonial hearsay. The State's petition for a writ of certiorari — asking whether the Confrontation Clause barred admission of Covington's statements to police at trial — was granted (LII / Legal Information Institute, 2011).

Miller v. State (2004) — The plaintiff argued that the trial court's decision to allow Rashad Barnes to inform the jury of what Hanson told him violated the plaintiff's Fifth, Sixth, and Fourteenth Amendment rights. The court was urged to find that Hanson's statements to Barnes could be admitted under a well-established hearsay rule exception. The State maintained that the "against penal interest" exception to the hearsay rule provided the appropriate grounds for admitting the evidence (Miller v. State, 2004).

Hunt v. State (2009) — A jury in Oklahoma County's District Court tried and convicted the plaintiff, Randal Ray Hunt, of first-degree malicious murder. The jury found three aggravating circumstances and recommended the death penalty, which the trial court imposed. On appeal, the plaintiff argued that a recording admitted at trial constituted testimonial hearsay that denied him his Sixth Amendment confrontation rights. The State's appellate brief countered that, under the doctrine of forfeiture by wrongdoing, the plaintiff had forfeited any claim of a Confrontation Clause violation (Hunt v. State, 2009).

Taylor v. State (2011) — The plaintiff raised three propositions on appeal. First, he contended that the evidence was insufficient to support his conviction for shooting with intent to kill. The court reviewed whether any reasonable finder of fact could have determined the key elements of the crime beyond a reasonable doubt when viewing the evidence in the light most favorable to the prosecution. Second, the plaintiff argued that the district court erred by failing to instruct the jury that each count should be considered independently; because counsel did not request such an instruction at trial, review was limited to plain error. Third, the plaintiff contended that the admission of extrajudicial statements made by his grandmother violated both the hearsay rule and his constitutional confrontation right (Taylor v. State, 2011).

Conclusion

As Justice Scalia's reasoning implies, if the U.S. Supreme Court can construct a hypothetical scenario — such as a killer running at large through a city attacking everyone — to justify particular outcomes, what will prevent other courts from doing the same? And where will hearsay and the Confrontation Clause stand as a result (Rabiner, 2011)? While most hearsay rules permit the non-availability of the declarant, and a few even require it, there are only a limited number of federal and Maryland hearsay exceptions that actually mandate in-court testimony by declarants. Consequently, in criminal trials, situations readily arise in which the accused cannot confront an unavailable declarant whose statement nonetheless qualifies under a hearsay exception (Grimm et al., 2010).

Given the rate at which Maryland's Court of Appeals and the U.S. Supreme Court have issued opinions regarding the contours of the Confrontation Clause since Crawford was decided in 2004, it is reasonable to predict that this trend will continue for the foreseeable future — at least until the many unanswered questions about the Clause's impact on hearsay admissibility in criminal cases have been resolved (Grimm et al., 2010). Acknowledging this reality, and the practical challenges faced by lawyers and trial judges who must address these issues while a trial is in progress, this paper has attempted to provide useful, workable guidelines that should promote fair trial outcomes and correct court rulings.

The Sixth Amendment's Confrontation Clause, reduced to its essentials, bars the introduction of testimonial out-of-court statements as evidence against a defendant in a criminal trial unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine him or her. However, even testimonial statements for which no prior opportunity for cross-examination existed may be admitted against defendants under certain circumstances (Grimm et al., 2010). The Clause is not violated when the accused has been stripped of confrontation rights through his or her own wrongdoing, has waived those rights by failing to object to the admission of the statement, or has not complied with statutes requiring notification to the prosecution that the accused intends to contest the introduction of testimonial out-of-court statements — such as laboratory reports — unless the declarant testifies at trial.

References

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