19. Hearsay and the Confrontation Clause

In criminal cases, there is an inherent problem using hearsay against a criminal defendant. It seems on its face to violate the confrontation clause of the Sixth Amendment, which guarantees that the defendant shall have the right to confront the witnesses against him.

Originally, the Supreme Court took the position that the right of confrontation and the rules of evidence were the same -- in other words, that if a hearsay statement fell into a traditional hearsay exception, it was admissible. Then in 2004, in Crawford v. Washington, the Court radically changed direction, and held that the right of confrontation overrode the hearsay exceptions. If the statement was "testimonial" (i.e., factual and either accusatory or important in making out the case against the accused), then the confrontation clause prevents its use against a defendant unless the defendant has an opportunity at trial or in another context (e.g., a deposition) to cross-examine the declarant. Now the problem was going to be how to define “testimonial.”

In Davis v. Washington (2006), the Court said the intent of the declarant mattered. A call for help (e.g., 911 call) was not testimonial even if it named the suspect; an accusation to aid the police in prosecuting the suspect would be. This parallels the hearsay concept that to be “factual,” an assertion must describe an event that has already happened.

In Michigan v. Bryant (2011), the Court held that other aspects of the context also mattered -- to be an “accusatory”statement, the declaration just have been made with some degree of formality, usually after the event itself is over and the investigation has begun. A statement to police made at the scene 10 minutes after the 911 call, when the police are still trying to determine what happened (the ongoing emergency rule) is not yet testimonial. This parallels the hearsay concept of an excited utterance.

In Melendez-Diaz v. Massachusetts (2009), the Court said that whether the hearsay statement goes to prove the truth of a material issue matters. A police lab report used to prove an element of the crime (e.g., that the substance was cocaine) is testimonial; a police report offered to impeach a witness is not. This parallels the hearsay concept of a statement offered for its truth vs. one offered for other relevant reasons.

For example, suppose that David Defendant is charged with drug distribution. The witness is the narcotics officer who set up the buy. Narc testifies that he met Middle Man at a bar who promised to arrange the sale. Narc testifies that Middle Man said, "I can fix you up with a big dealer. A brick of cocaine is $5000. Bring it in $100 bills and go to the Chicken Shack. The dealer always wears a top hat."

Could the defense object to some or all of this as violating the Confrontation Clause? When you think you know the answer, click here .