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.

Damon Chetson

Damon Chetson is a Board Certified Specialist in State and Federal Criminal Law. He represents people charged with serious and minor offenses in Raleigh, Wake County, and the Eastern District of North Carolina. Call (919) 352-9411.