INTRODUCTION TO CONFRONTATION CLAUSE ISSUES
The hearsay rule permits the admission of many out-of-court statements, even when the declarant is unavailable for cross-examination and has never been subject to prior questioning. However, as established in the landmark decision Crawford v. Washington, 541 U.S. 36 (2004), the admission of certain statements, specifically those deemed testimonial, can present serious Sixth Amendment Confrontation Clause concerns that must be addressed before such evidence is allowed.
Crawford draws a critical distinction between non-testimonial hearsay (which does not implicate the Sixth Amendment) and testimonial hearsay (which does). When a hearsay statement is testimonial, and the declarant is unavailable and has not been subject to prior cross-examination, the Confrontation Clause prohibits its admission, regardless of its reliability or probative value.
Since Crawford, the central issue in Confrontation Clause jurisprudence has become: What exactly is “testimonial”?
QUESTION:
As a judge or trial attorney, how do you determine whether an out-of-court statement is “testimonial” and thereby triggers the defendant’s Sixth Amendment right to confrontation?
ANSWER:
The answer lies in applying a structured four-step analysis rooted in Crawford. This practical approach, accompanied by a user-friendly flowchart and checklist, guides you through the evaluation process to ensure compliance with constitutional standards.
To access the complete explanation, flowchart, and checklist, read the attached Martine Law Firm Training Update 25-3.
For a print-ready version, click here.
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