Confrontation Clause: Right to Confront

Testimonial statements may not be admitted at trial if the witness is unavailable and the defendant has not had an adequate prior opportunity to cross-examine the witness. Such statements would violate the defendant’s Confrontation Clause rights if admitted at trial.

What constitutes an adequate prior opportunity to cross examine?

In State v. Ross, the Defendant got to cross examine a witness at a probable cause hearing, but the witness was not available at trial. The State sought to introduce prior statements by the witness at Trial. The defendant objected that those statements were inadmissible because the Defendant had had the opportunity to cross-examine at probable cause.

The Defendant on appeal focused on the fact that he did not have adequate prior opportunity to cross examine the witness, and that therefore his Confrontation Clause rights were compromised.

He noted that his lead trial counsel had not been appointed at the time of the probable cause hearing.

The Court of Appeals held that the testimony at the probable cause hearing did afford the Defendant an opportunity to cross examine, and so the witnesses’ statements at the probable cause hearing were admissible at trial even though the witness was unavailable at trial for the defendant’s trial counsel to cross-examine.

Confrontation Clause Cases decided by the Supreme Court

The Confrontation Clause is one of the most important – but overlooked – parts of constitutional criminal law. While many legal analysts focus on the Fourth Amendment’s protections against unlawful searches and seizures, or the Fifth Amendment’s protection against self-incrimination, the most recent, positive Supreme Court developments in criminal defense law have been in the area of the Sixth Amendment’s Confrontation Clause.

The Sixth Amendment says, in part, “in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.”

Earlier this month, the Supreme Court held in Bullcoming v. New Mexico that “[t]he Confrontation Clause . . . does not permit the prosecution to introduce a forensic laboratory report containing a testimonial certification, made in order to prove a fact at a criminal trial, through the in-court testimony of an analyst who did not sign the certification or personally perform or observe the performance of the test reported in the certification.”

That means that the State may not introduce the results of a chemical analysis or other lab result through an analyst who did not perform or witness the analyst perform the test.

The defendant Bullcoming had been charged with a DWI in New Mexico. The state had attempted to introduce the results of a chemical analysis of the defendant’s blood through a certificate and the testimony of an analyst who had not conducted the actual analysis. The Supreme Court held that the State must provide the live testimony of the actual person who tested the blood in order to present the results as substantive evidence in a criminal trial.

The ruling extends the Court’s previous holding in Melendez-Diaz, the 2009 case involving a drug test in which the Commonwealth of Massachusetts attempted to introduce an affidavit of the results of a test of a substance believed to be an illegal drug at trial.

Recent Developments in Confrontation Clause Law

The confrontation clause of the United States Constitution provides every defendant to question – in court – his accusers. Accusers is a broad term, including not just the victim, but also anyone who may have said something incriminating about the defendant outside of court.

The confrontation clause is a protection for the defendant, allowing the defendant or his attorney to vigorously question the witness. In 2002, in Crawford v. Washington the Supreme Court invoked the Confrontation Clause to prevent an out-of-court statement from being admitted in court because the out-of-court statement had never been confronted by the defendant.

The Supreme Court said that there are two types of statements. Testimonial statements are those statements made in contemplation of prosecution. For instance, when police are interviewing witness following a crime, that would ordinarily be a testimonial statement. Testimonial statements are not admissible on their own without the opportunity of the defendant to confront the witness.

Non-testimonial statements are other statements – statements not made in contemplation of prosecution. These statements are admissible without violating the confrontation clause. The rationale is that because these statements were not made in contemplation of prosecution, they are more reliable because the person making them wasn’t thinking about how they might appear to a jury. In other words, the person making those statements was probably being truthful because he was making the statement.

The Supreme Court has had to, in subsequent decisions, define whether a statement is testimonial or non-testimonial. The State would like most statements to be ruled non-testimonial so that they can admit them against the defendant without having to bring the witness to court.

In Michigan v. Bryant the Supreme Court ruled two weeks ago that statements by a victim (who later died) to 5 different police officers during their investigation of the shooting that led to his death were non-testimonial. In a blistering dissent, Antonin Scalia accused the majority of misreading and misapplying the facts of the case to permit the admission of the testimony when in fact it should’ve been barred.

Confrontation Clause: Post-Crawford Developments

The “confrontation clause” of the Sixth Amendment to the United States Constitution provides that “in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.”

This little phrase has created a whole library full of commentary and legal opinions. At its core, the phrase is simple enough: a defendant ought to be able to question, under oath and in court, any witness who speaks against him.

And in most cases, this concept is easy to put into practice. For instance, if a witness claims he saw the Defendant rob a bank, that witness should be brought into court and questioned by the Defendant’s lawyer about whether that witness is telling the truth, could be confused, or is biased.

But in several respects, the Confrontation Clause complicates a prosecutor’s life. For example, if the witness is no longer available – has passed away by the time of trial, has fled the jurisdiction, or is now asserting a privilege against testifying – then it may be impossible for the prosecutor to introduce that evidence because of the Defendant’s Confrontation Clause rights.

In addition, modern criminal prosecutions often rely upon complex scientific or other expert testimony. In North Carolina, the State Bureau of Investigation (SBI) or the City-County Bureau of Investigation (CCBI) may conduct tests, blood screens, or other examinations, the results of which the prosecutor seeks to introduce at trial. But the confrontation clause seems to give defendants the right to confront all witnesses, including expert witnesses. Should the state be required to produce the chemical analyst who ran the blood test? The confrontation clause seems to say yes.

In 1980, the Supreme Court ruled in Ohio v. Roberts that so long as the out-of-court statements by the witness had adequate “indicia of reliability,” those statements could be introduced at trial even where the witness was not available to testify.

This “indicia of reliability” test allowed states to also introduce out-of-court reports by analysts at state investigatory agencies so long as someone could vouch for the report, even if the person who actually conducted the test was not available to testify.

However, in Crawford v. Washington and in Melendez-Diaz v. Massachusetts the Supreme Court overturned the old “indicia of reliability” test, instead creating a new test that relies more directly on the Confrontation Clause. This new test asks the trial court to consider whether the out-of-court statement is “testimonial” or not.

If the out-of-court statement is testimonial, then the witness must be produced at court so that the Defendant can cross-examine the witness, unless the defendant had a prior opportunity to cross-examine the witness. If the witness cannot be produced, then the out-of-court statement can’t be used.

If the out-of-court statement is non-testimonial, then the witness does not need to be produced.

In a later case – Washington v. Davis, the Supreme Court clarified that a testimonial statement is one given about a past event and that may be relevant to a future prosecution. On the other hand, if the police were taking statements in order to respond to a “present or imminent risk of harm to an individual or the public,” then the statements would be non-testimonial, and could be admitted a court without producing the witness.

And in Melendez-Diaz, Massachusetts prosecutors sought to introduce proof that a white powdery substance tested by analysts was cocaine by providing an affidavit by a chemical analyst, but not by providing the analyst himself for cross-examination. The Supreme Court held that the Confrontation Clause requires the production of the chemical analyst to be cross-examined by the defendant’s lawyer.

North Carolina has been applying this rule to our state’s courts. In State v. Brewington (pdf), the North Carolina Court of Appeals held that the defendant’s right to confrontation under the Sixth Amendment was violated when the trial court allowed a state’s expert to testify to the identity of a substance as cocaine when the analysis of the substance was performed by a non-testifying expert. The court stated that it was clear that the testifying expert was not involved in testing the substance, nor did she conduct any independent analysis of the substance.

Confrontation Clause and DWI Cases – Melendez-Diaz v. Massachusetts

For years North Carolina, like many states, permitted the State to introduce the results of a DWI defendant’s breath test. That meant that the Defendant’s attorney would have no opportunity to question the breath analyst on the stand about the procedure used, whether the breath analyst was certified at the time the test was given, and whether all the rules and regulations were followed.

In June of 2009, the United States Supreme Court handed down the landmark Melendez-Diaz v. Massachusetts case, which turns on the Confrontation Clause of the Sixth Amendment which permits defendants to question all accusers at trial.

The Supreme Court ruled that it’s insufficient for the state merely to provide an affidavit. The state, in order to introduce evidence such as the results of lab tests, must provide the actual analyst so that the Defendant can have an opportunity to cross-examine the analyst.



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