Confrontation Clause — testimonial statements

U.S. Const. amend. VI; Crawford v. Washington

The rule

In a criminal case, a testimonial out-of-court statement of an absent declarant is inadmissible against the accused unless the declarant is unavailable AND the defendant had a prior opportunity for cross-examination. Testimonial statements include those made with the primary purpose of creating an out-of-court substitute for trial testimony (formal police interrogation, affidavits, prior testimony); statements made primarily to resolve an ongoing emergency (Davis v. Washington) are non-testimonial.

In plain English

This is a constitutional overlay on top of hearsay — even if a statement fits a hearsay exception, if it is testimonial and the defendant never had a chance to cross-examine, it violates the Sixth Amendment. 911 calls seeking help during an ongoing crime are typically non-testimonial; formal witness statements at the station are testimonial.

The trap

Forfeiture by wrongdoing (804(b)(6)) also forfeits the Confrontation Clause objection (Giles v. California requires the wrongdoing to have been intended to prevent testimony).

How examiners test it

Domestic violence victim gives statement to responding officer, then fails to appear at trial. Turns on primary-purpose test.

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