§ 36.01   Introduction [519]

 

The Sixth Amendment provides that “in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him.”  The Confrontation Clause was held binding upon the states in Pointer v. Texas, 380 U.S. 400 (1965).  There are several aspects to the Confrontation Clause.  First, the right of confrontation includes the right of the accused to be present at trial.  Second, it guarantees the accused the right to face adverse witnesses (“face-to-face” confrontation).  Third, the defendant also has the right to cross-examine these witnesses.  Finally, the hearsay rule by permitting the admission of evidence without the cross-examination of the declarant raises confrontation issues.

 

§ 36.02   Right to be Present at Trial [519-21]

 

The right of confrontation guarantees an accused the right to be present during trial, a right that may be forfeited by disruptive behavior (Illinois v. Allen, 397 U.S. 337 (1970)). or the accused's voluntary absence after the trial has commenced (Taylor v. United States, 414 U.S. 17 (1973).)

 

§ 36.03   Right to “Face-to-Face” Confrontation [521-22]

 

The Supreme Court has held that the right of confrontation requires "face-to-face" confrontation. However, this right is not absolute. In Maryland v. Craig, 497 U.S. 836 (1990), the Court upheld a statutory procedure that allowed the use of one-way closed circuit television for the testimony of a child witness in a sexual abuse case. Significantly, the trial court made a fact-specific inquiry to determine whether the child would be traumatized by testifying in the presence of the accused.

 

§ 36.04   Right to Cross-Examination [522-25]

 

On more than one occasion, the Supreme Court has stated that the primary interest secured by the Confrontation Clause is the right of cross-examination.  Douglas v. Alabama, 380 U.S. 415, 418 (1965).  Many of the Court’s cases have involved limitations on the elicitation of bias impeachment on cross-examination.  These limitations have invariably been struck down. See Olden v. Kentucky, 488 U.S. 227 (1988); Delaware v. Van Arsdall, 475 U.S. 673 (1986); Davis v. Alaska, 415 U.S. 308 (1974).

 

§ 36.05   Confrontation & Hearsay [525-34] [Note: After this section was written, the Supreme Court decided Crawford v. Washington, 541 U.S. 36 (2004), differentiating between "testimonial" and "nontestimonial" hearsay and holding that the Confrontation Clause bars the admission of testimonial hearsay unless the declarant is unavailable and the accused has had a prior opportunity to cross-examine the declarant.]

 

Since a hearsay declarant is, in effect, a witness, a literal application of the Confrontation Clause would preclude the prosecution from introducing any hearsay statement, notwithstanding the applicability of a recognized hearsay exception.  The Supreme Court has never adopted such an extreme view.  The Clause also could be interpreted as requiring only the right to cross-examine in-court witnesses and not out-of-court declarants.  Under this view, all hearsay exceptions would satisfy constitutional requirements.  The Supreme Court also has rejected this view.  Instead of either of these two approaches, the Court has attempted to steer a middle course.  The cases can be divided into two categories – those in which the declarant testifies at trial and those in which the declarant does not testify. 

 

            [A]       Available Declarants:  Cross-examination at Trial

 

An opportunity to cross-examine the hearsay declarant at trial usually satisfies the Confrontation Clause. California v. Green, 399 U.S. 149 (1970). 

 

            [B]       Unavailable Declarants: Ohio v. Roberts’ Two-pronged Test

 

In Ohio v. Roberts, 448 U.S. 56 (1980), the Court set-forth a two-pronged analysis that focused on (1) the unavailability of the declarant and (2) the reliability of the hearsay statement.

 

                                                [1]        Reliability Requirement

 

The reliability requirement may be satisfied in either of two ways: (1) showing that the statement falls within a “firmly rooted hearsay exception,” which makes it presumptively reliable; or (2) demonstrating that the statement possesses particularized guarantees of trustworthiness.

 

                                                [a]  “Firmly Rooted” Exceptions

 

“Firmly rooted” exceptions include the coconspirator exception, Bourjaily v. United States, 483 U.S. 171 (1987), as well as the excited utterance and medical diagnosis exceptions. White v. Illinois, 502 U.S. 346 (1992).  The Court took a closer look at this requirement in Lilly v. Virginia, 527 U.S. 116 (1999), ruling that the exception for declarations against penal interest, as interpreted by the Virginia Supreme Court, was not a firmly rooted exception.

 

                                                [b]  Particularized Guarantees of Trustworthiness

 

If a statement does not fall within a “firmly rooted” hearsay exception, it may nevertheless satisfy Confrontation Clause demands if it possesses particularized guarantees of trustworthiness.  In Idaho v. Wright, 497 U.S. 805, 806 (1990), a case involving the admissibility of a child’s statement under a residual hearsay exception, the Court held that the trustworthiness requirement involves a case-by-case approach that considers the “totality of the circumstances” at the time the statement was made.  The relevant factors include spontaneity, consistency of repetition, the mental state of the declarant, use of terminology unexpected of a child of similar age, and lack of motivation to lie. 

 

                                                [2]        Unavailability Requirement

 

The second prong of Ohio v. Roberts focuses on the unavailability of the declarant.  At the time Roberts was decided, this requirement suggested a demanding standard.  In Barber v. Page, 390 U.S. 719, 725 (1968), the Court had held that this requirement is satisfied only if “the prosecutorial authorities have made a good-faith effort to obtain” the presence of the declarant at trial.  However, later cases demonstrate that the Roberts’ unavailability requirement will not be strictly applied.  In United States v. Inadi, 475 U.S. 387, 394 (1986), which involved the admissibility of coconspirator admissions, the Court limited Roberts to cases involving former testimony, explaining that Roberts cannot be read “to stand for the radical proposition that no out-of-court statement can be introduced by the government without a showing that the declarant is unavailable.”  The Court reaffirmed this position in White v. Illinois, 502 U.S. 346, 354 (1992), which involved the excited utterance and medical diagnosis exceptions in a child sex abuse prosecution.  Again, the Court ruled that “Roberts stands for the proposition that unavailability analysis is a necessary part of the Confrontation Clause inquiry only when the challenged out-of-court statements were made in the course of a prior judicial proceeding.”