MBE Rules · Criminal Procedure
Confrontation Clause
Crawford
The rule
Testimonial out-of-court statements are inadmissible against a criminal defendant unless (1) the declarant is unavailable AND (2) the defendant had a prior opportunity to cross-examine (Crawford). Testimonial = statements made under circumstances objectively indicating later use at trial.
In plain English
If someone says something outside of court that could be used against a defendant, the defendant must have a chance to question them unless the person can't come to court.
Worked example
Officer A interviews a witness who describes the crime. If the witness can't testify at trial, the defendant must have had a chance to question the witness earlier for the statement to be used.
Memory hook
Crawford's Confrontation: Cross or Cut. No cross-exam means no testimonial statement allowed.
The trap
Students think: Any out-of-court statement violates the Confrontation Clause. Wrong, because it's only testimonial statements without cross-exam. The actual test is unavailability and prior cross-examination opportunity.
How examiners test it
The MBE loves: witness statement to police, witness now unavailable. Trap: assuming all such statements are inadmissible. Key: focus on whether there was a chance for prior cross-examination.
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