Confrontation Clause The right to confront and cross exam your accusers.

The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that "in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.“

Applied to the States The incorporation of the Bill of Rights is the process by which courts have applied portions of the U.S. Bill of Rights to the states. Prior to 1925, the Bill of Rights was held only to apply to the federal government. Under the incorporation doctrine, most provisions of the Bill of Rights now also apply to the state and local governments.

Prior to the ratification of the Fourteenth Amendment and the development of the incorporation doctrine, the Supreme Court in 1833 held in Barron v. Baltimore that the Bill of Rights applied only to the federal, but not any state governments.

Pointer v. Texas, 380 U.S. 400 (1965). In Pointer the court used the 14 th Amendment incorporation theory to apply the right to confront witnesses because it was a fundamental right.

The Confrontation Clause has been read to generally provide defendants with the right to be in the courtroom during trial and the right to a face-to-face confrontation with the witness.

The right to be present in the courtroom does not necessarily apply to pretrial hearings, and it can be waived by voluntary absence or by disorderly conduct.

The right to a face-to-face confrontation is not absolute. A face-to-face confrontation may be prevented if preventing it serves an important public purpose without sacrificing the rationale behind the right of confrontation.

Crawford v. Washington Why was the witness testimonial? Why is her statement not barred by hearsay?

Ohio v. Roberts Prior to Crawford, the controlling standard for admitting statements that unavailable witnesses made to other persons was that of Ohio v. Roberts. According to the Court in Roberts, if a witness is unavailable, that witnesses’ testimony can be admitted through a third person if it bears "adequate indicia of reliability". This was true if a statement fell within a "firmly rooted hearsay exception" or had "particularized guarantees of trustworthiness".

Scalia re-writes the Law The Confrontation Clause applies to all “testimonial statements.” And only testimonial statements…

What the hell is a testimonial statement? If a declarant can reasonably expect the statement to be use in a criminal trial it is testimonial!

Elements 1. Is the witness unavailable? 2. Is the statement testimonial? 3. Is it offered against an accused. 4. Was there an opportunity for cross- examination at the prior declaration?

The right to cross- examine a witness is the heart of the Confrontation Clause!

Exceptions Davis v. Washington: 911 Call-emergency Forfeiture by wrongdoing—Giles v. California Dying Declarations--?

The Problem of Child Abuse Does Crawford apply to child witnesses? Is a child’s statement testimonial? Does the forfeiture by wrong doing apply? – Bootstrapping problem