Evidence: Hearsay: Confrontation Clause

• Hearsay and the Confrontation Clause – In criminal cases the 6^th Amendment requires that the Defendant be confronted with the witnesses against him. The Prosecution may not offer testimonial hearsay in violation of the defendant’s right to cross-examine the declarant.

• “Right to cross-examine the declarant” is satisfied if the defendant:
• Already had a chance to cross-examine the declarant
• Can actually cross-examine the declarant at trial
• Forfeited his confrontation right by witness tampering.

• “Testimonial” means:
• Grand jury testimony is testimonial
• Statements in response to police interrogation:
• Testimonial if the primary purpose of the questioning is to establish or prove past event potentially relevant to later criminal prosecution
• Non-testimonial if the primary purpose of the questioning is to enable police assistance to meet an on going emergency.
• Documents:
• Police reports = testimonial
• Business records = not testimonial