CONFRONTATION In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him….

Ohio v. Roberts (1980) 448 U.S. 56 If read literally, Confrontation Clause would require exclusion of any statement made by a declarant not present at trial. If read literally, Confrontation Clause would require exclusion of any statement made by a declarant not present at trial. If thus applied, the Clause would abrogate virtually every hearsay exception. If thus applied, the Clause would abrogate virtually every hearsay exception. Such a result has long been rejected as unintended and too extreme. Such a result has long been rejected as unintended and too extreme.

Ohio v. Roberts (1980) 448 U.S. 56 (cont.) The Confrontation Clause was intended to exclude some hearsay The Confrontation Clause was intended to exclude some hearsay The Clause reflects a preference for face-to- face confrontation at trial The Clause reflects a preference for face-to- face confrontation at trial A primary interest secured by the Clause is the right of cross-examination A primary interest secured by the Clause is the right of cross-examination

Ohio v. Roberts (1980) 448 U.S. 56 (cont.) The Confrontation Clause envisions: The Confrontation Clause envisions: A personal examination and cross-examination of the witness A personal examination and cross-examination of the witness Where the accused has the opportunity to test the recollection of the witness Where the accused has the opportunity to test the recollection of the witness And the opportunity to sift the conscience of the witness And the opportunity to sift the conscience of the witness To compel the witness to face the jury and the accused To compel the witness to face the jury and the accused To allow the jury to judge the demeanor of the witness and whether the witness is worthy of belief To allow the jury to judge the demeanor of the witness and whether the witness is worthy of belief

Ohio v. Roberts (1980) 448 U.S. 56 (cont.) There are competing interests that may warrant dispensing with confrontation at trial: There are competing interests that may warrant dispensing with confrontation at trial: The strong interest in effective law enforcement The strong interest in effective law enforcement The development and precise formulation of the rules of evidence applicable in criminal proceedings The development and precise formulation of the rules of evidence applicable in criminal proceedings

Ohio v. Roberts (1980) 448 U.S. 56 (cont.) The Confrontation Clause restricts admissible hearsay in two ways: The Confrontation Clause restricts admissible hearsay in two ways: 1. It usually requires the prosecution to produce or demonstrate the unavailability of the declarant 1. It usually requires the prosecution to produce or demonstrate the unavailability of the declarant 2. It requires a showing of trustworthiness such that there is no material departure from the reason of the general rule 2. It requires a showing of trustworthiness such that there is no material departure from the reason of the general rule

Ohio v. Roberts (1980) 448 U.S. 56 (cont.) Certain hearsay exceptions rest upon such solid foundations that admission of virtually all evidence within the exception comports with the substance of the constitutional protection. Certain hearsay exceptions rest upon such solid foundations that admission of virtually all evidence within the exception comports with the substance of the constitutional protection.

Ohio v. Roberts (1980) 448 U.S. 56 (cont.) Truism: hearsay rules and the Confrontation Clause are generally designed to protect similar values and stem from the same roots. Truism: hearsay rules and the Confrontation Clause are generally designed to protect similar values and stem from the same roots. Responsive to the need for certainty in the workaday world of conducting criminal trials. Responsive to the need for certainty in the workaday world of conducting criminal trials.

Ohio v. Roberts (1980) 448 U.S. 56 (cont.) The Confrontation Clause requires a showing that the witness is unavailable The Confrontation Clause requires a showing that the witness is unavailable Even then, admissibility subject to showing indicia of reliability: Even then, admissibility subject to showing indicia of reliability: 1. Reliability can be inferred, without more, in a case where the evidence falls within a “firmly rooted hearsay exception”; 1. Reliability can be inferred, without more, in a case where the evidence falls within a “firmly rooted hearsay exception”; 2. or from a showing of “particularized guarantees of trustworthiness”. 2. or from a showing of “particularized guarantees of trustworthiness”.

Ohio v. Roberts (1980) 448 U.S. 56 (cont.) The Sixth Amendment demands substantial compliance with the purposes behind the confrontation requirement. The Sixth Amendment demands substantial compliance with the purposes behind the confrontation requirement. The opportunity to cross-examine at a prior proceeding, even absent actual cross-examination, satisfies the Confrontation Clause The opportunity to cross-examine at a prior proceeding, even absent actual cross-examination, satisfies the Confrontation Clause

Ohio v. Roberts (1980) 448 U.S. 56 (cont.) Unavailability: Unavailability: Requires good faith effort to obtain presence of witness at trial Requires good faith effort to obtain presence of witness at trial No requirement of engaging in futile acts No requirement of engaging in futile acts The lengths the prosecution must go is a question of reasonableness The lengths the prosecution must go is a question of reasonableness Prosecution bears the burden of proof in establishing this predicate Prosecution bears the burden of proof in establishing this predicate

Lilly v. Virginia (1999) 527 U.S. 116 Cross examination is the “greatest legal engine ever invented for the discovery of truth” Cross examination is the “greatest legal engine ever invented for the discovery of truth” Old 16 th and 17 th century practices of prosecution by ex parte affidavits without the affiants being produced for trial is the evil at which the Confrontation Clause is aimed. Old 16 th and 17 th century practices of prosecution by ex parte affidavits without the affiants being produced for trial is the evil at which the Confrontation Clause is aimed.

Lilly v. Virginia (1999) 527 U.S. 116 (cont.) Declaration against penal interest is too broad for meaningful Confrontation Clause analysis Declaration against penal interest is too broad for meaningful Confrontation Clause analysis Covers three categories: Covers three categories: 1. voluntary admissions against declarant 1. voluntary admissions against declarant 2. exculpatory evidence offered by defendant who claims declarant committed or was involved in the offense 2. exculpatory evidence offered by defendant who claims declarant committed or was involved in the offense 3. evidence offered by prosecution to establish guilt of an alleged accomplice of defendant 3. evidence offered by prosecution to establish guilt of an alleged accomplice of defendant

Lilly v. Virginia (1999) 527 U.S. 116 (cont.) 1. voluntary admissions against declarant -- if declarant is single defendant in case – statement is admissible -- if co-defendant case – Bruton issue (clash of 5 th Amendment privilege not to testify vs. 6 th Amendment right to confront) -- redaction issue -- instruction issues -- separate juries, refrain from use of statement or separate trials -- what happens if declarant defendant testifies?

Lilly v. Virginia (1999) 527 U.S. 116 (cont.) 2. exculpatory evidence offered by defendant who claims declarant committed or was involved in the offense 2. exculpatory evidence offered by defendant who claims declarant committed or was involved in the offense Longtime rule prohibited use of this type of statement because considered inherently unreliable Longtime rule prohibited use of this type of statement because considered inherently unreliable Now a defendant can offer such evidence – by definition, because a defendant offers it – no confrontation clause issue Now a defendant can offer such evidence – by definition, because a defendant offers it – no confrontation clause issue But must meet reliability requirement But must meet reliability requirement

Lilly v. Virginia (1999) 527 U.S. 116 (cont.) 3. evidence offered by prosecution to establish guilt of an alleged accomplice of defendant 3. evidence offered by prosecution to establish guilt of an alleged accomplice of defendant This type of statement is inherently unreliable This type of statement is inherently unreliable Declarant is a person accused of the same criminal conduct as defendant Declarant is a person accused of the same criminal conduct as defendant Motive to shift blame is great Motive to shift blame is great Effective way to lie is to mix falsehood with truth, especially truth that seems particularly persuasive because of its self-inculpatory nature Effective way to lie is to mix falsehood with truth, especially truth that seems particularly persuasive because of its self-inculpatory nature

Lilly v. Virginia (1999) 527 U.S. 116 (cont.) Accomplice statements that shift blame are so untrustworthy that confrontation is required Accomplice statements that shift blame are so untrustworthy that confrontation is required Different than circumstances surrounding co- conspirator statements Different than circumstances surrounding co- conspirator statements When government is involved in producing accomplice statements, it is so similar to ex parte affidavits practice that it must be subjected to adversarial testing When government is involved in producing accomplice statements, it is so similar to ex parte affidavits practice that it must be subjected to adversarial testing

Crawford v. Washington (2004) 541 U.S. 36 The right to confront accusers goes back to Roman times The right to confront accusers goes back to Roman times History supports two inferences about the meaning of the Sixth Amendment History supports two inferences about the meaning of the Sixth Amendment The Confrontation Clause is focused on preventing the evil of the use of ex parte examinations as evidence against the accused The Confrontation Clause is focused on preventing the evil of the use of ex parte examinations as evidence against the accused The Framers would not have allowed the testimonial statements of a witness who did not appear at trial unless he was unavailable to testify and the defendant had a prior opportunity to cross examine The Framers would not have allowed the testimonial statements of a witness who did not appear at trial unless he was unavailable to testify and the defendant had a prior opportunity to cross examine

Crawford v. Washington (2004) 541 U.S. 36 (cont.) Witnesses against the accused are those who “bear testimony” Witnesses against the accused are those who “bear testimony” Testimony is typically a solemn declaration or affirmation made for the purpose of establishing or proving a fact Testimony is typically a solemn declaration or affirmation made for the purpose of establishing or proving a fact Interrogators are those involved in investigative and prosecutorial functions Interrogators are those involved in investigative and prosecutorial functions

Crawford v. Washington (2004) 541 U.S. 36 (cont.) Historically, all testimonial statements are barred by the Confrontation Clause unless its requirements are met Historically, all testimonial statements are barred by the Confrontation Clause unless its requirements are met The Clause does not apply to hearsay that is not testimonial e.g. business records exception or co-conspirator statements The Clause does not apply to hearsay that is not testimonial e.g. business records exception or co-conspirator statements Dying declaration is a historical deviation Dying declaration is a historical deviation

Crawford v. Washington (2004) 541 U.S. 36 (cont.) Rule: Rule: Testimonial statements of witnesses absent from trial may be admitted only where: Testimonial statements of witnesses absent from trial may be admitted only where: 1. the witness is unavailable, and 1. the witness is unavailable, and 2. the defendant has had a prior opportunity to cross-examine the witness 2. the defendant has had a prior opportunity to cross-examine the witness

Crawford v. Washington (2004) 541 U.S. 36 (cont.) Ohio v. Roberts overruled Ohio v. Roberts overruled (firmly rooted exception or particularized reliability) (firmly rooted exception or particularized reliability) Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because the accused is obviously guilty Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because the accused is obviously guilty Reliability is an amorphous, if not entirely subjective, concept Reliability is an amorphous, if not entirely subjective, concept

Forfeiture by Wrongdoing Giles v. California 554 U.S. ___; 128 S.Ct (2008) Giles v. California 554 U.S. ___; 128 S.Ct (2008) More than the act of killing the declarant is required More than the act of killing the declarant is required The defendant’s intent is a key factor The defendant’s intent is a key factor To avoid the requirement of confrontation, it must be shown that the defendant killed declarant to prevent her from testifying To avoid the requirement of confrontation, it must be shown that the defendant killed declarant to prevent her from testifying

Forfeiture by Wrongdoing (cont.) Evid. Code sec. 1350: Evid. Code sec. 1350: Must be a serious felony Must be a serious felony Unavailable Declarant Unavailable Declarant Clear/convincing evidence linking party Clear/convincing evidence linking party To prevent prosecution or arrest of party To prevent prosecution or arrest of party Death by homicide or kidnapping of declarant Death by homicide or kidnapping of declarant Memorialized in a tape recording or notarized writing Memorialized in a tape recording or notarized writing By a law enforcement official By a law enforcement official Indicia of trustworthiness must be present Statement is relevant Independent corroborative evidence linking defendant to crime 10 days notice or good cause showing Requires hearing outside presence of jury See People v. Zambrano (2007) 41 Cal.4 th 1082,

Forfeiture by Wrongdoing (cont.) People v. Banos (2009) 180 Cal.App.4 th 483 People v. Banos (2009) 180 Cal.App.4 th 483 Thorough analysis of Crawford, Giles, Davis, and Hammond in the context of a DV murder case (does not cover §1350) Thorough analysis of Crawford, Giles, Davis, and Hammond in the context of a DV murder case (does not cover §1350) Some Forfeiture by Wrongdoing rules: Some Forfeiture by Wrongdoing rules: Preventing witness from testifying Preventing witness from testifying Dissuading witness from reporting (can infer) Dissuading witness from reporting (can infer) Silencing witness need not be sole motive Silencing witness need not be sole motive

Davis v. Washington (2006) 547 U.S. 813 Test for whether a statement is testimonial: Test for whether a statement is testimonial: Is primary purpose of interrogation to meet an ongoing emergency? Is primary purpose of interrogation to meet an ongoing emergency? Is primary purpose of interrogation to establish or prove past events potentially relevant to a later criminal prosecution? Is primary purpose of interrogation to establish or prove past events potentially relevant to a later criminal prosecution?

Davis v. Washington (2006) 547 U.S. 813 (cont.) What is happening? What is happening? or or What happened? What happened?

Melendez-Diaz v. Massachusetts (2009) ___ U.S. ___; 129 S.Ct “Certificates” that state the substance tested is contains cocaine. “Certificates” that state the substance tested is contains cocaine. Simply offered as “prima facie” evidence of the nature of the substance – analysts not produced as witnesses Simply offered as “prima facie” evidence of the nature of the substance – analysts not produced as witnesses Nature of the substance is an element the prosecution must prove to convict Nature of the substance is an element the prosecution must prove to convict

Melendez-Diaz v. Massachusetts (cont.) Name of document does not change the fact that they are testimonial affidavits Name of document does not change the fact that they are testimonial affidavits Little doubt that they fall within Crawford because they are functionally identical to live, in-court testimony, doing precisely what a witness does on direct examination Little doubt that they fall within Crawford because they are functionally identical to live, in-court testimony, doing precisely what a witness does on direct examination Thus, under Crawford, unless analysts are unavailable and petitioner had prior opportunity to cross, he is entitled to confront at trial Thus, under Crawford, unless analysts are unavailable and petitioner had prior opportunity to cross, he is entitled to confront at trial

Melendez-Diaz v. Massachusetts (cont.) We do not hold that anyone whose testimony is relevant in establishing the chain of custody, the authenticity of the sample, or the accuracy of the testing device, must appear as part of the prosecutor’s case We do not hold that anyone whose testimony is relevant in establishing the chain of custody, the authenticity of the sample, or the accuracy of the testing device, must appear as part of the prosecutor’s case Gaps in the chain normally go to the weight, not the admissibility Gaps in the chain normally go to the weight, not the admissibility But, what testimony is offered must be live But, what testimony is offered must be live Documents re equipment maintenance may well qualify as non-testimonial records Documents re equipment maintenance may well qualify as non-testimonial records

Melendez-Diaz v. Massachusetts (cont.) Dissent arguments: Dissent arguments: Sweeping “new” rule eliminates 90 years of rules covering the admission of scientific evidence – 35 states and 6 Federal Circuits Sweeping “new” rule eliminates 90 years of rules covering the admission of scientific evidence – 35 states and 6 Federal Circuits Response: only 30 years worth of precedent and most of it relies on Ohio v. Roberts Instead, the dissent seeks to overturn precedent by resurrecting Roberts a mere 5 years after it was rejected in Crawford

Melendez-Diaz v. Massachusetts (cont.) Further arguments by respondent and dissent: Further arguments by respondent and dissent: Analysts are not “accusatory” witnesses – they do not directly accuse defendant of wrongdoing – their testimony is only inculpatory when combined with other evidence linking defendant to contraband Analysts are not “accusatory” witnesses – they do not directly accuse defendant of wrongdoing – their testimony is only inculpatory when combined with other evidence linking defendant to contraband Response: Confrontation clause envisions 2 classes of witnesses – those against defendant and those for him. The prosecution must call the former, the defense may call the latter. Response: Confrontation clause envisions 2 classes of witnesses – those against defendant and those for him. The prosecution must call the former, the defense may call the latter. There is no 3 rd class of witnesses – those helpful to the prosecution, but somehow immune to confrontation There is no 3 rd class of witnesses – those helpful to the prosecution, but somehow immune to confrontation

Melendez-Diaz v. Massachusetts (cont.) Further arguments by respondent and dissent: Further arguments by respondent and dissent: Analysts are not “conventional” witnesses – b/c not recalling past events – merely reporting on contemporaneous observations Analysts are not “conventional” witnesses – b/c not recalling past events – merely reporting on contemporaneous observations Also have not observed any crime nor human action Also have not observed any crime nor human action Also no report in response to interrogation Also no report in response to interrogation Response: Response: 1) affidavits completed after testing complete – do not fit within Davis; 1) affidavits completed after testing complete – do not fit within Davis; 2) no authority for this position – is a police officer’s report describing crime scene admissible absent confrontation? This novel exception would exempt all expert witnesses from confrontation; 2) no authority for this position – is a police officer’s report describing crime scene admissible absent confrontation? This novel exception would exempt all expert witnesses from confrontation; 3) voluntary witness is no less a witness against defendant – in any event testing and certificate were in response to police request 3) voluntary witness is no less a witness against defendant – in any event testing and certificate were in response to police request

Melendez-Diaz v. Massachusetts (cont.) Further arguments by respondent and dissent: Further arguments by respondent and dissent: Analysts testimony is the result of “neutral, scientific testing” unlike recounting historical events which are prone to distortion or manipulation Analysts testimony is the result of “neutral, scientific testing” unlike recounting historical events which are prone to distortion or manipulation Response: Response: This argument is little more than invitation to return to overruled decision in Roberts This argument is little more than invitation to return to overruled decision in Roberts Moreover, confrontation designed to weed out fraudulent and incompetent scientific analyst Moreover, confrontation designed to weed out fraudulent and incompetent scientific analyst

Melendez-Diaz v. Massachusetts (cont.) Further arguments by respondent and dissent: Further arguments by respondent and dissent: Analysts affidavits are akin to official and business records Analysts affidavits are akin to official and business records Response: Response: Business records are not admissible if the business activity is the production of evidence for use at trial Business records are not admissible if the business activity is the production of evidence for use at trial Business records fit within the exception when they are created for the administration of an entity’s affairs Business records fit within the exception when they are created for the administration of an entity’s affairs

Melendez-Diaz v. Massachusetts (cont.) Further arguments by respondent and dissent: Further arguments by respondent and dissent: Should find no confrontation violation b/c defendant had the ability to subpoena the analysts Should find no confrontation violation b/c defendant had the ability to subpoena the analysts Response: Response: Power to produce evidence is no substitute for the right of confrontation Power to produce evidence is no substitute for the right of confrontation Converting the prosecutor’s duty to the defendant’s privilege shifts the consequences of adverse-witness no-shows from the State to the accused Converting the prosecutor’s duty to the defendant’s privilege shifts the consequences of adverse-witness no-shows from the State to the accused

Melendez-Diaz v. Massachusetts (cont.) Further arguments by respondent and dissent: Further arguments by respondent and dissent: The Confrontation Clause requirements should be relaxed to accommodate the “necessities of the trial and adversarial world” The Confrontation Clause requirements should be relaxed to accommodate the “necessities of the trial and adversarial world” It may true that Confrontation Clause makes the prosecution of criminals more burdensome, but so does right to trial by jury and 5 th Amendment privilege It may true that Confrontation Clause makes the prosecution of criminals more burdensome, but so does right to trial by jury and 5 th Amendment privilege

Melendez-Diaz v. Massachusetts (cont.) Note: Vigorous and heated debate within the Court – has a pointed, almost personal tone Note: Vigorous and heated debate within the Court – has a pointed, almost personal tone Note: Majority opinion of 4 joined by 1 in concurring opinion – dissent of 4 Note: Majority opinion of 4 joined by 1 in concurring opinion – dissent of 4 Note: Chief Justice with dissent Note: Chief Justice with dissent

Bullcoming v. New Mexico (2011) 564 U.S. ____ Forensic analyst certifies test results showing blood alcohol level above aggravated level Forensic analyst certifies test results showing blood alcohol level above aggravated level Analyst did not testify because on unpaid leave for undisclosed reasons Analyst did not testify because on unpaid leave for undisclosed reasons No showing of unavailability No showing of unavailability Another analyst called to testify to first analyst’s records of testing Another analyst called to testify to first analyst’s records of testing

Bullcoming v. New Mexico (cont.) Court reverses New Mexico Supreme Court Court reverses New Mexico Supreme Court Justice Ginsburg writes opinion for five Justices – various concurrences – Justice Ginsburg writes opinion for five Justices – various concurrences – Holds that First analyst’s report is testimonial Holds that First analyst’s report is testimonial Prepared for use in a prosecution and introduced to prove a fact in a criminal trial Prepared for use in a prosecution and introduced to prove a fact in a criminal trial

Bullcoming v. New Mexico (cont.) Holds that First analyst’s report is testimonial: Holds that First analyst’s report is testimonial: Prepared for use in a prosecution and introduced to prove a fact in a criminal trial Prepared for use in a prosecution and introduced to prove a fact in a criminal trial Confrontation Clause forbids 2 nd analyst’s testimony about report because did not perform or observe 1 st analyst do the test Confrontation Clause forbids 2 nd analyst’s testimony about report because did not perform or observe 1 st analyst do the test Defendant had right to cross 1 st analyst unless unavailable and pretrial opportunity to cross Defendant had right to cross 1 st analyst unless unavailable and pretrial opportunity to cross

Bullcoming v. New Mexico (cont.) Rejects idea that test result is simply a number that calls for no interpretation on 1 st analyst’s part Rejects idea that test result is simply a number that calls for no interpretation on 1 st analyst’s part Comparative reliability of analyst’s certification of test results does not excuse compliance with confrontation rights Comparative reliability of analyst’s certification of test results does not excuse compliance with confrontation rights Qualifying 2 nd analyst as expert does not get around Clause requirements: Qualifying 2 nd analyst as expert does not get around Clause requirements: Would not expose lapses or lies of 1 st analyst Would not expose lapses or lies of 1 st analyst Would not explain unpaid leave – incompetence, evasiveness or dishonesty? Would not explain unpaid leave – incompetence, evasiveness or dishonesty?

Melendez-Diaz v. Massachusetts (cont.) In California: In California: People v. Geier (2007) 41 Cal. 4 th 555 -DNA analyst’s notes, report and analysis not testimonial b/c not incriminating, just part of her job – results could have been either inculpatory or exculpatory –interpreting Davis v. Washington People v. Geier (2007) 41 Cal. 4 th 555 -DNA analyst’s notes, report and analysis not testimonial b/c not incriminating, just part of her job – results could have been either inculpatory or exculpatory –interpreting Davis v. Washington Cal. Supreme Court has now granted review in at least 7 post Melendez-Diaz cases decided by the Courts of Appeal Cal. Supreme Court has now granted review in at least 7 post Melendez-Diaz cases decided by the Courts of Appeal