Hearsay Evidence and the Sixth Amendment Confrontation Clause

Introduction: Purpose and Scope

The main objective of the American constitutional provision under study 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).

The key themes this paper addresses include the following: the confrontation right as one of the basic assurances of liberty and life; the Sixth Amendment's Confrontation Clause as a guarantee of a key aspect of the adversarial trial process; and the 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, to aid busy practitioners and trial judges with 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 introduced as proof against a 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, primary confrontation rights are settled effectively in most situations. This paper analyzes how the Clause is employed in the present-day court system, in addition to examining broader criminal justice ideals.

Landmark Case Examples

Crawford v. Washington (2004). The petitioner 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 evidence that the stabbing was not committed in self-defense. Sylvia did not testify at trial owing to the State's marital privilege. The petitioner argued that admission of her statement violated his Sixth Amendment confrontation right. The Supreme Court reversed the lower court's judgment and remanded the case for further proceedings consistent with its opinion. Crawford v. Washington stands as the foundational modern ruling on the Confrontation Clause, establishing that testimonial hearsay is inadmissible unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination.

Davis v. Washington (2006). In this case, Michelle McCottrey called 911 while in a physical altercation with her boyfriend, the defendant Adrian Davis. In a panic, and in response to questions posed by the 911 operator, she identified Davis as the person hitting her. Davis was charged with felony violation of a domestic no-contact order. The central issue was determining when declarations made to a 911 operator or at a crime scene are "testimonial," and therefore subject to Confrontation Clause requirements. The 911 call recording was admitted into evidence over the defendant's objections. Davis was convicted; he appealed, and both the lower appeals court and Washington's Supreme Court affirmed the conviction.

Melendez-Diaz v. Massachusetts (2009). Massachusetts tried defendant Melendez-Diaz for cocaine distribution and trafficking. At trial, laboratory analysis certificates were introduced to prove that the substance seized from the defendant was cocaine. The lab analysts who prepared those certificates did not testify. The question presented was whether such affidavits are "testimonial," making their affiants "witnesses" subject to defendant confrontation under the Sixth Amendment. Melendez-Diaz was convicted. On appeal, he argued that the analysis certificates were testimonial and that their admission violated his constitutional confrontation rights. The Massachusetts appellate court affirmed, and the defendant appealed to the Supreme Court, which considered six grounds for ruling on whether certificate admission implicated the Confrontation Clause.

Michigan v. Bryant (2011). Detroit police officers dispatched to a gas station parking lot found the wounded Anthony Covington, who told them he had been shot outside Richard Bryant's home 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 to police inadmissible testimonial hearsay. The State's petition for a writ of certiorari — asking the U.S. Supreme Court to determine whether the Confrontation Clause barred admission of Covington's declarations — was granted.

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

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

Taylor v. State (2011). In the first proposition, the defendant argued that the evidence was insufficient to support the verdict on the charge of shooting with intent to kill. The standard applied was whether any reasonable finder of fact could have determined the essential elements of the crime beyond a reasonable doubt, reviewing the evidence in the light most favorable to the prosecution. The second proposition alleged that the district court erred in 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. In the third proposition, the defendant argued that admission of his grandmother's extrajudicial declarations violated the hearsay rule and his constitutional confrontation right.

Conclusion and Practical Implications

As implied by Justice Scalia, if the U.S. Supreme Court is able to posit an imaginary universe in which a killer is running rampant through the city attacking everyone, what will prevent other courts from reasoning similarly? And where will hearsay doctrine and the Confrontation Clause ultimately stand (Rabiner, 2011)? While most hearsay rules permit the non-availability of the declarant — and a few even require it — there is only one federal hearsay exception and a limited number of Maryland exceptions that mandate declarant testimony in court. Thus, in criminal trials, situations readily arise in which the accused cannot confront unavailable declarants whose statements nonetheless satisfy a hearsay exception (Grimm et al., 2010).

Given the pace 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 safe to predict that this trend will continue in the near future — at least until the numerous 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 challenges faced by lawyers and trial judges who must tackle such issues in the middle of ongoing proceedings, this paper has attempted to provide practical, workable guidelines that should lead to fair outcomes and correct rulings.

The Sixth Amendment 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. Even statements classified as testimonial, for which no prior cross-examination opportunity existed, may still be admitted against a defendant if the accused forfeited the confrontation right through his or her own wrongdoing, waived it by failing to object to the statement's introduction, or failed to comply with statutes requiring advance notice to the prosecution that the defendant intends to contest the introduction of testimonial out-of-court statements — such as laboratory reports — unless the declarant testifies at trial (Grimm et al., 2010).

References

Grimm, P., Deise, J., & Grimm, J. (2010). The Confrontation Clause and the hearsay rule: What hearsay exceptions are testimonial? University of Baltimore Law Forum, 40(2). Retrieved from http://law.ubalt.edu/downloads/law_downloads/UB%20Law%20Forum%20-%20Confrontation%20Clause%20Article%20-%20Website%20Download.pdf

Hunt v. State. (2009). Retrieved April 8, 2016, from http://www.oscn.net/applications/oscn/deliverdocument.asp?id=456603

LII / Legal Information Institute. (2004). Crawford v. Washington. Retrieved April 3, 2016, from http://www.law.cornell.edu/supct/html/02-9410.ZO.html

LII / Legal Information Institute. (2006). Davis v. Washington. Retrieved April 3, 2016, from http://www.law.cornell.edu/supct/html/05-5224.ZO.html

LII / Legal Information Institute. (2009). Melendez-Diaz v. Massachusetts. Retrieved April 4, 2016, from http://www.law.cornell.edu/supct/html/07-591.ZO.html

LII / Legal Information Institute. (2011). Michigan v. Bryant. Retrieved April 4, 2016, from http://www.law.cornell.edu/supct/html/09-150.ZO.html

LII / Legal Information Institute. (n.d.). CRS/LII Annotated Constitution: Sixth Amendment. Retrieved April 3, 2016, from http://www.law.cornell.edu/anncon/html/amdt6frag6_user.html

Miller v. State. (2004). Retrieved April 8, 2016, from http://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=441194

Mosteller, R. (2005). Crawford v. Washington: Encouraging and ensuring the confrontation of witnesses. University of Richmond Law Review, 39(2). Retrieved from

Fenner, G. M. (2009). Today's Confrontation Clause (after Crawford and Melendez-Diaz). Retrieved from

Rabiner. (2011). Hearsay exception: Supreme Court narrows Confrontation Clause. FindLaw Blogs: Decided. Retrieved April 6, 2016, from

Sixth Amendment — Rights of Accused in Criminal Prosecutions. (n.d.). Justia U.S. Law. Retrieved April 4, 2016, from

Sklansky, D. (2009). Hearsay's last hurrah. Supreme Court Review, 2009(1). Retrieved from

Taylor v. State. (2011). Retrieved April 8, 2016, from http://www.oscn.net/applications/oscn/deliverdocument.asp?cite=248%20P.3d%20362