The 6th Amendment's Confrontation Clause
The 6th Amendment to the U.S. Constitution sets out many rights for defendants during a criminal prosecution, including the right of the accused to confront their accusers. The relevant text of the Confrontation Clause of the 6th Amendment reads as follows: In all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him.
The 14th Amendment has made the 6th Amendment's right to confrontation applicable to state court as well as federal court.
The confrontation clause guarantees criminal defendants the opportunity to face the prosecution's witnesses in the case against them and dispute the witnesses' testimony. This guarantee applies to both statements made in court and statements made outside of court that are offered as evidence during trial.
The Right to Cross-Examine
For in-court statements, the confrontation clause essentially means that the defendant has a right to cross-examine witnesses in order to challenge their testimony. Trial rules can shape or limit the manner of the cross-examination, so long as those rules stand up to a confrontation clause analysis. A trial court may prevent repetitive or unduly harassing cross-examination, but defendants otherwise enjoy a wide latitude when confronting witnesses during a cross-examination. If a trial judge restricts cross-examination too severely, a violation of the confrontation clause may have occurred.
In building a case, prosecutors may want to use statements that people have made outside of the courtroom as evidence against the defendant. If the person making the statements does not appear in court to testify, however, using such statements may constitute a confrontation clause violation.
Here are some examples of out-of-court statements that may run afoul of the confrontation clause:
- Statements by a non-testifying victim made during a police interrogation
- Statements by a non-testifying victim to emergency medical responders, hospital staff or social workers
- An autopsy report by a non-testifying medical examiner
Crawford v. Washington and Out-of-Court Statements
In 2004, the Supreme Court decided an important case, Crawford v. Washington, that altered the rules for when prosecutors can use out-of-court statements against a defendant.
Before Crawford, the Supreme Court had held that out-of-court statements did not violate the confrontation clause as long as they were adequately reliable. In Crawford, the Court changed course and determined that defendants had a right to cross-examine out-of-court statements, regardless of whether or not the statements were reliable.
After Crawford, the government cannot use out-of-court statements that are offered as testimony against the defendant unless the witness is unavailable and the defendant has had a previous opportunity to cross-examine the witness.
The Supreme Court recently carved out an important exception to this general rule for so-called "dying declarations". In Michigan v. Bryant, the Court ruled that a statement made by a dying person can be entered into evidence at trial if the statement was made to assist police with an "ongoing emergency" as opposed to merely helping the police investigate a past crime.
Melendez-Diaz v. Massachusetts and Forensic Tests
In Melendez-Diaz v. Massachusetts, the Supreme Court extended its rule from Crawford to cover reports from forensic analysts. Specifically, the Court ruled that prosecutors cannot use a report on the chemical makeup of a batch of alleged illegal drugs if the laboratory technician who prepared the report does not testify at trial.
The Court upheld, however, the use of "notice and demand" statutes. Notice and demand statutes allow the prosecution to notify the defendant of the prosecution's intent to use a drug report without additional testimony. If the defendant does not object to the prosecution's use of the report, no confrontation clause violation has occurred.
Recently, the Court further enhanced the rules for forensic analyses in a case known as Bullcoming v. New Mexico. In that case, the Court clarified the Melendez rule by stating that the actual person who performed the forensic test must also give testimony at trial. Testimony from a different forensic analyst from the same lab would not satisfy the 6th Amendment's requirements, according to the Court.
Testimony from a different analyst could constitute an acceptable substitute, however, if the original analyst was not available to testify and the defense had a previous opportunity to perform cross-examination.