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.