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United States v. Kizzee - 877 F.3d 650 (5th Cir. 2017)


The Confrontation Clause of the Sixth Amendment,  U.S. Const. amend. VI, provides that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him. The Confrontation Clause bars the admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had a prior opportunity for cross-examination. Testimony is defined as a solemn declaration or affirmation made for the purpose of establishing or proving some fact. But the Confrontation Clause does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted. Police officers cannot, through their trial testimony, refer to the substance of statements given to them by nontestifying witnesses in the course of their investigation, when those statements inculpate the defendant. When the statement from an out-of-court witness is offered for its truth, constitutional error can arise.


Defendant Pereneal Kizzee was charged with possession of ammunition and firearms by a convicted felon (count one), possession of a controlled substance with intent to deliver (count two), and possession of a firearm during and in relation to a drug trafficking crime (count three). Kizzee pleaded not guilty. At trial in federal district court, the Government's key witness was Detective Lance Schultz. The prosecutor asked Detective Schultz about questions he posed to a criminal suspect, Carl Brown, during an interrogation. In response to Detective Schultz's questions, Brown inculpated Kizzee for distributing narcotics. But Brown did not otherwise testify, and he was not subject to cross-examination at trial. Kizzee objected based on hearsay and the Confrontation Clause, which the district court overruled. A jury found Kizzee guilty on all three counts. On appeal, Kizzee argued that the prosecutor's questions and Detective Schultz's testimony effectively admitted Brown's out-of-court statements in violation of the Confrontation Clause and the rules on hearsay.


Was the prosecutor's questioning of Detective Schultz admitted testimonial hearsay in violation of the Confrontation Clause?




The appellate court vacated Kizzee's convictions for the drug-related offenses (counts 2 nd 3) and remanded the matter for a new trial. The court ruled that the prosecutor's questioning of Detective Schultz effectively admitted the suspect's out-of-court statements regarding Kizzee's alleged distribution of narcotics in violation of Kizzee's rights under the Confrontation Clause. The error was not harmless, the court ruled, because no other witness provided testimony from personal knowledge that Kizzee sold drugs, and the suspect's testimony was crucial to establishing Kizzee's guilt as the only other evidence establishing Kizzee as a drug dealer was circumstantial.

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