CONFRONTATION
CLAUSE UPDATE
Matthew Meyer and T. Allan Regas
Cuyahoga County Prosecutor’s Office
6TH AMENDMENT OF THE UNITED STATES
CONSTITUTION
In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury of the
State and district wherein the crime shall have been
committed, which district shall have been previously
ascertained by law, and to be informed of the nature and
cause of the accusation; to be confronted with the
witnesses against him; to have compulsory process for
obtaining witnesses in his favor, and to have the Assistance
of Counsel for his defence.
18th Century English
Common Law:
Blackstone and the
Old Bailey Cases
In the first edition of his Commentaries,
Blackstone suggested that the law “allow[ed]
what the child told her mother, or other relations,
to be given in evidence, since the nature of the
case admits frequently of no better proof.”
This view is evident in 18th-century practice.
When judges found children incompetent, they
“were disposed to compensate by allowing the
mother, a surgeon, or others to whom the child
had spoken contemporaneously upon the
happening of the events to give an account of
what the child had then said.” * * * Child hearsay
was thus common ‘from 1684 to 1789.’”
See Lyon and LaMagna, The History of Children's
Hearsay: From Old Bailey to Post-Davis, 82 Ind.
L.J. 1029, 1038 (2007), surveying available
records of all Old Bailey rape cases from 1684 to
1788, finding 22 instances of admitted child
victim hearsay.
18th Century English
Common Law:
Blackstone and the
Old Bailey Cases
Why does it matter?
From Clark:
“As a historical matter,
moreover, there is strong evidence that
statements made in circumstances similar to
those facing L. P. and his teachers were
admissible at common law. See Lyon & LaMagna,
The History of Children’s Hearsay: From Old
Bailey to Post-Davis, 82 Ind. L. J. 1029, 1030
(2007); see also id., at 1041–1044 (examining
child rape cases from 1687 to 1788); J. Langbein,
The Origins of Adversary Criminal Trial 239
(2003) (“The Old Bailey” court in 18th-century
London “tolerated flagrant hearsay in rape
prosecutions involving a child victim who was not
competent to testify because she was too young
to appreciate the significance of her oath. * * * It
is thus highly doubtful that statements like L. P.’s
ever would have been understood to raise
Confrontation Clause concerns.”
Mattox v. United
States, 156 U.S. 237,
15 S. Ct. 337, 39 L.
Ed. 409 (1895)
Facts: Defendant was prosecuted for
murder, which was reversed. At the
retrial, it was shown that two of the
government witnesses died after the
first trial.
The notes of their
testimony, taken by the stenographer
were admitted at the retrial.
“We are bound to interpret the
Constitution in the light of the law as it
Mattox v. United
States, 156 U.S. 237, existed at the time it was adopted, not
15 S. Ct. 337, 39 L. as reaching out for new guaranties of
the rights of the citizen, but as securing
Ed. 409 (1895)
to every individual such as he already
possessed as a British subject -- such as
his ancestors had inherited and
defended since the days of Magna
Charta. Many of its provisions in the
nature of a Bill of Rights are subject to
exceptions, recognized long before the
adoption of the Constitution, and not
interfering at all with its spirit. Such
exceptions were obviously intended to
be respected.” 156 U.S. 237, 243
Mattox v. United
States, 156 U.S. 237,
15 S. Ct. 337, 39 L.
Ed. 409 (1895)
Why it matters: In Crawford, the
Court adopted Justice Scalia’s
originalist view of what types of
evidence would have been commonly
admitted under common law at the
time of the founding.
Mattox
explicitly provides foundation for this
view, and recognizes the principle
underlying it.
Ohio v. Roberts,
448 U.S. 56, 100 S. Ct.
2531, 65 L. Ed. 2d
597 (1980)
Facts: The daughter of the victims
testified
that
Defendant
was
permitted to use her apartment, but
did not admit on examination by
defendant’s counsel at a preliminary
hearing that her parents checks and
credit cards for which defendant was
accused of forgery possession were
his to use. At trial, the daughter did
not appear. Defendant testified he
had
the
victim’s
daughter’s
permission to use the checks and
credit cards. The state introduced
the testimony from the preliminary
hearing.
Ohio v. Roberts,
448 U.S. 56, 100 S. Ct.
2531, 65 L. Ed. 2d
597 (1980)
Holding: Justice Blackmun delivered
the opinion of the Court, in which
Burger, C. J., and Stewart, White,
Powell, and Rehnquist, JJ. joined. The
introduction of the testimony from
the
preliminary
hearing
was
constitutionally permissible and that
“when a hearsay declarant is not
present for cross-examination at
trial, the Confrontation Clause
normally requires a showing that he
is unavailable.
Ohio v. Roberts,
448 U.S. 56, 100 S. Ct.
2531, 65 L. Ed. 2d
597 (1980)
Holding: Even then, his statement is
admissible only if it bears adequate
"indicia of reliability." Reliability can
be inferred without more in a case
where the evidence falls within a
firmly rooted hearsay exception. In
other cases, the evidence must be
excluded, at least absent a showing of
particularized
guarantees
of
trustworthiness.” 448 U.S. 56, 66.
Ohio v. Roberts,
448 U.S. 56, 100 S. Ct.
2531, 65 L. Ed. 2d
597 (1980)
Why it matters: Roberts was used at
criminal trials in order to enter
hearsay evidence where it was
admissible under a firmly rooted
exception to the hearsay rule or itself
exhibited sufficient indicia of
reliability.
The opinion did not
confine those exceptions to those in
existence at the time of the founding
of the country.
CRAWFORD AND ITS LIMITS
Right to Confrontation Redefined in the
New Millennium
Crawford v.
Washington,
541 U.S. 36, 124 S. Ct.
1354, 158 L. Ed. 2d
177 (2004)
Facts: Crawford stabbed Kenneth
Lee, a man he claimed tried to rape
his wife. During Crawford's trial,
Crawford’s wife did not testify on
spousal-privilege grounds. Instead,
prosecutors played for the jury
Crawford’s wife's tape-recorded
statement to the police describing
the
stabbing.
The
statement
contradicted Crawford's argument
that he stabbed the man in defense of
his wife. Crawford was convicted of
assault.
Crawford v.
Washington,
541 U.S. 36, 124 S. Ct.
1354, 158 L. Ed. 2d
177 (2004)
Holding: In a 9-0 opinion, the Court
sided with Crawford and ruled that the
Sixth Amendment's Confrontation
Clause gives defendants the right to
confront witnesses and cross-examine
them, including testimony obtained by
the police. The Court reasoned that the
Framers intended the Confrontation
Clause
to
prohibit
out-of-court
testimony
as
evidence
against
defendants. By allowing out-of-court
testimony if it was "reliable," the
Roberts decision departed from the
Framers' intent.
Crawford v.
Washington,
541 U.S. 36, 124 S. Ct.
1354, 158 L. Ed. 2d
177 (2004)
Holding:
"Dispensing
with
confrontation because testimony is
obviously reliable is akin to dispensing
with jury trial because a defendant is
obviously guilty." Notably, the Court
did not define testimonial beyond
stating that testimonial statements are
formal declarations, i.e. those made to
law enforcement or government
personnel. The Court focused heavily
on the use of ex parte affidavits during
Sir Walter Raleigh’s trial for treason
against the crown as an example of “the
principal evil” the confrontation clause
was designed to prevent.
Crawford v.
Washington,
541 U.S. 36, 124 S. Ct.
1354, 158 L. Ed. 2d
177 (2004)
Why it matters: This is the case that
changed
the
analysis
of
the
Confrontation Clause in criminal trials.
It defined the scope of the clause as
reaching only “testimonial evidence’
leaving open for lower courts – and
very quickly the Supreme Court - to
further refine the meaning of
testimonial.
Davis v. Washington,
547 U.S. 813, 126 S.
Ct. 2266, 165 L. Ed.
2d 224 (2006)
Facts:
In Davis v Washington, a
domestic violence case, the state used
portions of a 911 call in which the
victim reported the events and in which
the victim identified the defendant as
the perpetrator. In Hammon v Indiana,
the police responded to a domestic
violence call and the victim made
statements and signed and affidavit as
to the events.
Davis v. Washington,
547 U.S. 813, 126 S.
Ct. 2266, 165 L. Ed.
2d 224 (2006)
Holding:
Justice Scalia wrote the
opinion for the Court and was, joined
by Roberts, Ch. J., and Stevens, Kennedy,
Souter, Ginsburg, Breyer, and Alito, JJ.
The Court affirmed the Washington
Supreme Court’s judgment, but
reversed the Indiana Supreme Court.
Davis v. Washington,
547 U.S. 813, 126 S.
Ct. 2266, 165 L. Ed.
2d 224 (2006)
Holding:
The Court held that
statements are not testimonial when
made during a police interrogation
where the circumstances objectively
indicate that the primary purpose of the
interrogation is to allow police to deal
with and ongoing emergency but they
are testimonial when the circumstances
objectively indicate that there is no
ongoing emergency and when the
primary purpose of the interrogation is
to prove facts relevant for trial.
Davis v. Washington,
547 U.S. 813, 126 S.
Ct. 2266, 165 L. Ed.
2d 224 (2006)
Rationale:
Testimonial statements
are not limited to those statements that
are solemn declarations or affirmations
to prove a fact and prior sworn
testimony. Instead, the interrogation
in these cases was to be viewed to
whether the primary purpose of the
questioning sought to respond to an
ongoing emergency or whether they
were designed to produce statements
to prove facts for later prosecution. .
Davis v. Washington,
547 U.S. 813, 126 S.
Ct. 2266, 165 L. Ed.
2d 224 (2006)
Why it matters: In this case, the
statements at issue would be
admissible under hearsay exceptions;
however, they were the product of
police questioning and were used to
prove facts for the purposes of
prosecution. This case matters as it
created a limit on Crawford’s open
definition of testimonial.
Melendez-Diaz v.
Massachusetts,
557 U.S. 305 (2009)
Facts: Police in Massachusetts arrested
Melendez-Diaz for selling cocaine and
found several bags of cocaine
apparently discarded by Melendez-Diaz
while detained inside the police car. At
trial, bags of the cocaine that police
attributed to Melendez-Diaz were
introduced into evidence along with
drug analysis certificates prepared by
the lab technician who analyzed the
drugs and identified them as cocaine.
Melendez-Diaz v.
Massachusetts,
557 U.S. 305 (2009)
Facts: The technician’s certificates of
analysis contained the results of the
forensic analysis performed on samples
of the cocaine, contained the weight of
the seized bags and identified the
substance found was cocaine. The
certificates of analysis were sworn
before a notary public.
Melendez-Diaz v.
Massachusetts,
557 U.S. 305 (2009)
Holding: A laboratory report prepared
for use in a criminal prosecution is
"testimonial" evidence and therefore
governed by the Sixth Amendment
Confrontation Clause, as explained in
Crawford. Justice Scalia wrote for the
majority and explained that the lab
reports constitute affidavits which fall
within the "core class of testimonial
statements“
covered
by
the
Confrontation Clause. When MelendezDiaz was deprived of his right to
confront the persons who created the
lab reports used in testimony, his Sixth
Amendment right was violated.
Melendez-Diaz v.
Massachusetts,
557 U.S. 305 (2009)
Holding: The majority emphasized the
strictly-testimonial purpose of the
sworn certificates of analysis: “[N]ot
only were the affidavits “‘made under
circumstances which would lead an
objective witness reasonably to believe
that the statement would be available
for use at a later trial,’” * * *, but under
Massachusetts law the sole purpose of
the affidavits was to provide “prima
facie evidence of the composition,
quality, and the net weight” of the
analyzed
substance.”
[Citations
omitted].
Melendez-Diaz v.
Massachusetts,
557 U.S. 305 (2009)
Dissent: Justice Kennedy, joined by
Justices Roberts, Breyer, and Alito,
wrote that the majority had too-easily
rejected the long held rule that
scientific analysis could be introduced
into evidence without testimony from
the analyst who produced it. In an
unusually blunt opinion, Justice
Kennedy, condemned the majority
opinion as “formalistic and pointless,”
and wrote that “We learn now that we
have misinterpreted the Confrontation
Clause—hardly an arcane or seldomused provision of the Constitution—for
the first 218 years of its existence.
Melendez-Diaz v.
Massachusetts,
557 U.S. 305 (2009)
Dissent: The immediate systemic
concern is that the Court makes no
attempt to acknowledge the real
differences
between
laboratory
analysts who perform scientific tests
and
other,
more
conventional
witnesses—“witnesses” being the word
the Framers used in the Confrontation
Clause.”
Melendez-Diaz v.
Massachusetts,
557 U.S. 305 (2009)
Dissent: Justice Kennedy emphasized
that he believed the Confrontation
Clause should be read to apply to
traditional witnesses rather than
scientific experts, and that other
procedural
safeguards,
such
as
compulsory process, would safeguard a
defendant’s
right
to
challenge
laboratory results in trial.
Michigan v. Bryant,
562 U.S. 344, 131 S.
Ct. 1143, 179 L. Ed.
2d 93 (2011)
Syllabus Facts:
Michigan police dispatched to a gas
station parking lot found Anthony
Covington
mortally
wounded.
Covington told them that he had been
shot by respondent Bryant outside
Bryant's house and had then driven
himself to the lot. At trial, which
occurred before Crawford and Davis
were decided, the officers testified
about what Covington said. Bryant was
found guilty of second-degree murder.
Michigan v. Bryant,
562 U.S. 344, 131 S.
Ct. 1143, 179 L. Ed.
2d 93 (2011)
Holding:
Justice Sotomayor wrote the opinion of
the Courtjoined by Roberts, Ch. J., and
Kennedy, Breyer, and Alito, JJ. The
holding as reported at the Syllabus
reads:
Covington's
identification
and
description of the shooter and the
location of the shooting were not
testimonial statements because they
had a “primary purpose . . . to enable
police assistance to meet an ongoing
emergency.” Davis, 547 U.S., at 822
Michigan v. Bryant,
562 U.S. 344, 131 S.
Ct. 1143, 179 L. Ed.
2d 93 (2011)
Rationale:
In Davis, the Court
explained that “[s]tatements are
nontestimonial when made in the
course of police interrogation under
circumstances objectively indicating
that the [interrogation's] primary
purpose . . . is to enable police
assistance to meet an ongoing
emergency,” but they “are testimonial
when the circumstances objectively
indicate that there is no such ongoing
emergency,
and
that
the
[interrogation's] primary purpose is to
establish or prove past events
potentially relevant to later criminal
prosecution.” 547 U.S. at 822.
Michigan v. Bryant,
562 U.S. 344, 131 S.
Ct. 1143, 179 L. Ed.
2d 93 (2011)
Rationale: This primary purpose test
is therefore to be conducted in light of
all the circumstances, to include the
statements and actions of both the
declarant and the interrogators; these
being “objective evidence of the
primary purpose of the interrogation.”
562 U.S. 344, 367-368.
Michigan v. Bryant,
562 U.S. 344, 131 S.
Ct. 1143, 179 L. Ed.
2d 93 (2011)
Dissent: Justices Scalia dissents,
finding that the court’s test should be
based from the declarant’s point of
view, not the interrogators’. He notes
that such inquiry would lead to
consistent results and notes the Court
adopts a test that looks to the purposes
of both police and declarant.
Michigan v. Bryant,
562 U.S. 344, 131 S.
Ct. 1143, 179 L. Ed.
2d 93 (2011)
Dissent: Justice Ginsburg agreed with
Justice Scalia’s dissent finding the
statements testimonial, but further
noted that it may be an issue as to
whether the historical exception to the
confrontation clause, the dying
declaration, would still be viable under
the current jurisprudence of the Court.
Michigan v. Bryant,
562 U.S. 344, 131 S.
Ct. 1143, 179 L. Ed.
2d 93 (2011)
Why it matters: The exact objective
circumstances that are used to
determine whether or not a statement
is testimonial, in light of the test
adopted in Davis are at issue in the
Court. As illustrated by the dissent, the
emphasis of any inquiry as to whether
or not a statement is testimonial should
be determined from the perspective of
the declarant – not the interrogator.
Bullcoming v. New
Mexico, 131 S. Ct.
2705, 180 L. Ed. 2d
610 (2011)
Holding: A blood-alcohol test admitted
without the actual testimony of the
person who prepared the results can
violate a criminal defendant's Sixth
Amendment Confrontation Clause
rights.
The use of a testimonial
surrogate to admit the blood-alcohol
test did not distinguish the case from
the prosecutor’s use of forensic test
affidavits in Melendez-Diaz.
Bullcoming v. New
Mexico, 131 S. Ct.
2705, 180 L. Ed. 2d
610 (2011)
Dissent: Kennedy, Roberts, Alito, and
Breyer. Justice Kennedy, writing for the
dissent, reasoned that the prosecution’s
use of “a knowledgeable representative
of the laboratory was present to testify
and to explain the lab’s processes and
the details of the report” was “fully
consistent with the Confrontation
Clause and with well-established
principles for ensuring that criminal
trials are conducted in full accord with
requirements of fairness and reliability
and with the confrontation guarantee.”
Bullcoming v. New
Mexico, 131 S. Ct.
2705, 180 L. Ed. 2d
610 (2011)
Why it matters:
The dissenting
justices would not strictly find that the
Confrontation Clause is limited by
history, and its exceptions.
Ohio v. Clark,
135 S. Ct. 2173, 192 L. Ed. 2d 306 (2015)
Ohio v. Clark,
135 S. Ct. 2173, 192 L. Ed. 2d 306 (2015)
Ohio v. Clark,
135 S. Ct. 2173, 192
L. Ed. 2d 306 (2015)
Syllabus Facts:
Respondent Darius Clark sent his
girlfriend away
to engage
in
prostitution while he cared for her 3year-old son L. P. and 18-month-old
daughter A. T. When L. P.’s preschool
teachers noticed marks on his body, he
identified Clark as his abuser. Clark was
subsequently tried on multiple counts
related to the abuse of both children.
Ohio v. Clark,
135 S. Ct. 2173, 192
L. Ed. 2d 306 (2015)
Syllabus Facts:
At trial, the State introduced L.P.’s
statements to his teachers as evidence
of Clark’s guilt, but L.P. did not testify.
The trial court denied Clark’s motion to
exclude the statements under the Sixth
Amendment’s Confrontation Clause. A
jury convicted Clark on all but one
count. The state appellate court
reversed
the
conviction
on
Confrontation Clause grounds, and the
Supreme Court of Ohio affirmed.
Ohio v. Clark,
135 S. Ct. 2173, 192
L. Ed. 2d 306 (2015)
Procedural History: The trial court
denied Clark’s motion to exclude L.P.s
statements under the Confrontation
Clause. The Eighth District Court of
Appeals reversed the conviction on
Confrontation
Clause
grounds,
determining the primary purpose of
the day care teachers was to produce
testimonial statements. The Supreme
Court of Ohio, in a divisive opinion,
affirmed the Eighth District’s opinion,
holding that teachers, by virtue of being
mandatory reporters of child abuse
were taking testimonial statements. .
Ohio v. Clark,
135 S. Ct. 2173, 192
L. Ed. 2d 306 (2015)
Holding: Justice Alito delivered the
opinion, with which Roberts, C. J., and
Kennedy, Breyer, Sotomayor, and Kagan,
JJ. joined.
Ohio v. Clark,
135 S. Ct. 2173, 192
L. Ed. 2d 306 (2015)
The Court applied the primary purpose
test, noting that a statement is
testimonial where the “primary
purpose” of the conversation was to
“creat[e] an out-of-court substitute for
trial testimony.” Michigan v. Bryant, 562
U.S. 344, 369, 131 S. Ct. 1143, 179 L. Ed.
2d 93.
Ohio v. Clark,
135 S. Ct. 2173, 192
L. Ed. 2d 306 (2015)
The Court added that the test is to
consider all relevant circumstances, but
found that even though the test is met,
not every statement will be barred,
noting that the Confrontation Clause
does not prohibit statements otherwise
admissible at that time the Constitution
was adopted. The Court declined to
restrict the Confrontation Clause
analysis to all statements not taken by
private parties.
Ohio v. Clark,
135 S. Ct. 2173, 192
L. Ed. 2d 306 (2015)
Rationale: The Court continued to
apply the primary purpose, with the
consideration
of
all
relevant
circumstances, L.P.s statements to the
daycare teachers were not testimonial.
The child’s primary purpose in the
statement was not prosecution, but
were made in the context of an ongoing
emergency, in which the teachers
suspected child abuse. The questions
did not inform L.P. that Clark would be
arrested or punished and L.P. never
raised these issues. The conversation
was also informal and spontaneous.
Ohio v. Clark,
135 S. Ct. 2173, 192
L. Ed. 2d 306 (2015)
Rationale: Moreover, L.P.’s young age
was a factor because statements by
very young children will rarely be
testimonial. Further, there is evidence
that
statements
in
similar
circumstances were regularly admitted
at common law.
Finally, the Court noted that statements
not made to law enforcement or others
principally charged with uncovering
and prosecuting crimes are less likely
to be testimonial.
Ohio v. Clark,
135 S. Ct. 2173, 192
L. Ed. 2d 306 (2015)
Concurrence: Justice Scalia, joined by
Ginsburg, J concurred in judgment but
wrote separately to iterate that
Crawford remains the law and the
opinion’s dicta should not be read to
further erode Crawford, noting that the
dicta indicates that the primary
purpose test is only one of several not
yet determined conditions that would
render statements non-testimonial.
Ohio v. Clark,
135 S. Ct. 2173, 192
L. Ed. 2d 306 (2015)
Concurrence:
Justice
Thomas
concurred in judgment and urged that
the test to be applied to determine
whether statements are testimonial are
whether they bear sufficient indicia of
solemnity to fall within the original
meaning of testimony.
Justice Thomas has been consistent in
this regard noting that affidavits,
depositions, prior testimony, or
confessions
would
qualify
as
testimonial under the Confrontatiion
Clause
Ohio v. Clark,
135 S. Ct. 2173, 192
L. Ed. 2d 306 (2015)
Why it matters: The Clark majority
distanced itself from a rigid and
inflexible approach and applied a
“totality of the circumstances” test for
determining whether a statement was
testimonial.
Significantly, the Court seemed to flirt
with re-incorporating a Roberts type
reliability analysis when it explained
that “in determining whether a
statement is testimonial, standard rules
of hearsay, designed to identify some
statements as reliable, will be relevant.”
Ohio v. Clark,
135 S. Ct. 2173, 192
L. Ed. 2d 306 (2015)
Why it matters:
Although the Clark majority declined to
hold that statements made to private
individuals are categorically nontestimonial, it emphasized that such
statements are rarely likely to be
testimonial.
Ohio v. Clark,
135 S. Ct. 2173, 192
L. Ed. 2d 306 (2015)
Why it matters:
The Clark majority also made it clear
that the analysis to determine whether
a statement was testimonial was not
limited to the intent of the declarant or
the questioner, and that courts must
examine the statement within its
proper context to determine whether it
is testimonial.
Ohio v. Clark,
135 S. Ct. 2173, 192
L. Ed. 2d 306 (2015)
Why it matters:
A child’s spontaneous statements to his
teachers about injuries the teachers
observed in school simply don’t fit the
definition, even if the teacher has a
mandatory duty to report child abuse
to the state.
Ohio v. Clark,
135 S. Ct. 2173, 192
L. Ed. 2d 306 (2015)
Why it matters:
Justice Scalia, in his concurrence, was
aghast that the Clark majority was
undermining his decision in Crawford
by
attempting,
“to
smuggle
longstanding hearsay exceptions back
into the Confrontation Clause—in other
words, an attempt to return to Ohio v.
Roberts.”
Ohio v. Clark,
135 S. Ct. 2173, 192
L. Ed. 2d 306 (2015)
Why it matters:
Justice Scalia, in his concurrence, was
aghast that the Clark majority was
undermining his decision in Crawford
by
attempting,
“to
smuggle
longstanding hearsay exceptions back
into the Confrontation Clause—in other
words, an attempt to return to Ohio v.
Roberts.”
OHIO SUPREME COURT
CASE LAW
State v. Stahl,
111 Ohio St.3d 186,
2006-Ohio-5482,
855 N.E.2d 834
(2006)
Facts: A.M. reported to the police that
her boyfriend’s boss (Stahl) had orally
raped her. She was taken to the
hospital and signed a consent to
forensic exam form. The nurse and
A.M. spoke during the exam. A.M. died
before trial and the nurse testified. The
nurse testified at a pre-trial hearing
that A.M. told her that she had been
raped by Stahl.
State v. Stahl,
111 Ohio St.3d 186,
2006-Ohio-5482,
855 N.E.2d 834
(2006)
Holding:
Statements were nontestimonial
under
Confrontation
Clause. Justices O’Donnell, Resnick,
Lundberg Stratton, and O’Conner
State v. Stahl,
111 Ohio St.3d 186,
2006-Ohio-5482,
855 N.E.2d 834
(2006)
Rationale:
The Court held that
Crawford did not apply: the statements
were made to a medical professional
during
an
emergency
room
examination, not a police officer during
a police interrogation.
The Court
distinguished Davis and Hammon from
Stahl as those other cases involved
statement to police officers.
State v. Stahl,
111 Ohio St.3d 186,
2006-Ohio-5482,
855 N.E.2d 834
(2006)
Rationale:
The Court adopts the
objective witness test: a testimonial
statement includes one made under
circumstances which would lead an
objective witness reasonably to believe
that the statement would be available
for use at a later trial.
State v. Stahl,
111 Ohio St.3d 186,
2006-Ohio-5482,
855 N.E.2d 834
(2006)
Dissent: Justice Lanzinger, Pfeifer and
Chief Justice Moyer.
The dissent would hold that whether
the statement is testimonial is
determined
by
the
declarant’s
expectation. The dissent believes A.M.
reasonably
believed
that
her
statements could be used later at trial.
The dissent also points out that A.M.
was not seeking diagnosis or
treatment.
State v. Arnold,
126 Ohio St.3d 290,
2010-Ohio-2742
(2010)
Facts: Advocacy center has a purpose
“’to provide a comprehensive, culturally
competent, multidisciplinary response
to allegations of child abuse in a
dedicated, child friendly setting.’”
Arnold, 2010-Ohio-2742, at ¶ 29
(Quoting Nancy Chandler, Children’s
Advocacy Centers: Making a Difference
One Child at a Time (2006), 28 Hamline
J.Pub.L. & Policy 315, quoting National
Children’s
Alliance,
Accreditation
Guidelines for Children’s Advocacy
Centers (2004).)
Holding:
State v. Arnold,
126 Ohio St.3d 290,
2010-Ohio-2742
(2010)
1. Statements made to interviewers at
child-advocacy centers that serve
primarily a forensic or investigative
purpose are testimonial and are
inadmissible
pursuant
to
the
Confrontation Clause when the
declarant is unavailable for crossexamination.
2. Statements made to interviewers at
child-advocacy centers that are made
for medical diagnosis and treatment
are nontestimonial and are admissible
without offending the Confrontation
Clause.
State v. Arnold,
126 Ohio St.3d 290,
2010-Ohio-2742
(2010)
Rationale: The Court looked to the
primary purpose of the interview to
determine whether M.A.’s statements
were testimonial or not. It held that
because the social worker acted in a
dual capacity, the questions asked of
M.A. must be examined to determine
the primary purpose; if questions were
made for the purpose of medical
treatment and diagnosis, then the
answers are admissible; if the
questions were made to serve a
primary purpose of a forensic or
investigatory nature, the answers are
testimonial and inadmissible because
they are testimonial.
State v. Arnold,
126 Ohio St.3d 290,
2010-Ohio-2742
(2010)
Dissents: Justice Pfeifer would apply
the primary purpose test and not parse
the interview into segments and would
find that a forensic interview cannot be
both testimonial and nontestimonial
without violating the Sixth Amendment
right to counsel.
State v. Arnold,
126 Ohio St.3d 290,
2010-Ohio-2742
(2010)
Dissents: Justice O’Donnell would not
adopt a dual capacity test and parse the
examination, finding that Marshall
simply acted as an agent of law
enforcement where the interview was
conducted with no ongoing emergency
and focused solely on confirming past
events, especially where the medical
history obtained by Marshall did not go
further than the one given before.
State v. Maxwell,
139 Ohio St.3d 12,
2014-Ohio-1019.
Facts: Charles Maxwell fatally shot
Nichole McCorkle, who was a witness
against him in a prior felonious assault
and domestic violence case. Dr. David
Dolinak performed the autopsy of
Nichole McCorkle in 2005 and
prepared the autopsy report. Dolinak
then left the Cuyahoga County for a
medical examiner’s job in Austin, Texas.
State v. Maxwell,
139 Ohio St.3d 12,
2014-Ohio-1019.
Facts: The State introduced the
autopsy report as a business record
and had Dr. Joseph Felo testify about
the autopsy. Felo based his testimony
on examination of autopsy photographs
and x-rays, as well as microscopic
specimens taken during the autopsy, as
well a review of Although Dr. Dolinak’s
findings.
Felo provided his own
opinion concerning cause and manner
of death, stating, "The cause of Nichole
Anna Maria McCorkle's death is
gunshot wounds of [the] head * * *. The
manner of death is a homicide."
State v. Maxwell,
139 Ohio St.3d 12,
2014-Ohio-1019.
Holding:
For purposes of the
Confrontation
Clause,
generally,
autopsy reports are not (1) prepared
for the primary purpose of accusing a
targeted individual; or (2) prepared for
the primary purpose of providing
evidence in a criminal trial.
State v. Maxwell,
139 Ohio St.3d 12,
2014-Ohio-1019.
Rationale: The Court looked to the
primary purpose of the autopsy report.
The court emphasized that the
coroner’s statutory remains the same,
regardless of whether there is a
criminal case or not, to document the
circumstances of a death.
State v. Maxwell,
139 Ohio St.3d 12,
2014-Ohio-1019.
Rationale: An autopsy report that is
neither prepared for the primary
purpose of accusing a targeted
individual nor prepared for the primary
purpose of providing evidence in a
criminal trial is nontestimonial and its
admission into evidence at trial under
Evid. R. 803(6) as a business record
does not violate a defendant's Sixth
Amendment confrontation rights.
State v. Maxwell,
139 Ohio St.3d 12,
2014-Ohio-1019.
Petition for writ of certiorari to the
Supreme Court of Ohio denied.
Maxwell v. Ohio, 2015 U.S. LEXIS
1194, 135 S. Ct. 1400, 191 L. Ed. 2d
372, 83 U.S.L.W. 3677 (U.S. 2015)
After Clark: Where do we go from here?
Justice v. Parris,
2015 U.S. Dist. LEXIS
105096 (W.D. Tenn.
Aug. 11, 2015)
In Clark, the Supreme Court
addressed
whether
the
Confrontation
Clause
barred
admission of a child's statements to
his preschool teacher identifying the
defendant as the person who had
caused his injuries. Although the
Supreme Court "decline[d] to adopt
a rule that statements to individuals
who are not law enforcement
officers are categorically outside the
Sixth Amendment noted that:
Justice v. Parris,
2015 U.S. Dist. LEXIS
105096 (W.D. Tenn.
Aug. 11, 2015)
“[s]tatements made to someone who
is not principally charged with
uncovering and prosecuting criminal
behavior are significantly less likely
to
be
testimonial
than
are
statements made to law enforcement
officers. It is common sense that the
relationship between a student and
his teacher is very different from
that between a citizen and the
police.”
Jones v. Lewis,
2015 U.S. Dist. LEXIS
112682 (C.D. Cal.
July 14, 2015)
Report and Recommendation of
Magistrate
Judge
Paul
Abrams
(Adopted by court in Jones v. Lewis,
2015 U.S. Dist. LEXIS 112670 (C.D. Cal.
Aug. 21, 2015))
Holloman v.
Commonwealth,
65 Va. App. 147, 775
S.E.2d 434 (Va. Ct.
App. 2015)
“"[A] statement cannot fall within the
Confrontation Clause unless its primary
purpose was testimonial." [Clark]
Testimonial statements are the "sort
[that] cause the declarant to be a
'witness.'" [Davis] Statements are
testimonial when made during a police
interrogation and "'the primary
purpose of the interrogation is to
establish or prove past events
potentially relevant to later criminal
prosecution.'" [Clark] Statements made
"to individuals who are not law
enforcement officers . . . are much less
likely to be testimonial than statements
to law enforcement officers." [Clark]
Holloman v.
Commonwealth,
65 Va. App. 147, 775
S.E.2d 434 (Va. Ct.
App. 2015)
Certain documents, like medical
reports created for treatment purposes,
are nontestimonial. Sanders, 282 Va. at
164-65. "This is so because statements
made for medical treatment purposes
are not made in anticipation of or for
use in an investigation or prosecution
of a crime." Id. Similarly, business
records are not testimonial because
they are "created for the administration
of an entity's affairs and not for the
purpose of establishing or proving
some fact at trial." Melendez-Diaz, 557
U.S. at 324.
Holloman v.
Commonwealth,
65 Va. App. 147, 775
S.E.2d 434 (Va. Ct.
App. 2015)
“The gang notebook was used within
the criminal organization for purposes
of the gang and its members. Manning
explained that she had been tested on
its contents. The record does not reflect
any reason to believe that the notebook
was created for the purpose of a
criminal investigation or prosecution.
Consequently, the notebook was not
testimonial and its admission, as well
as the testimony about it, did not
violate
the
appellant's
Sixth
Amendment
right
to
confront
witnesses against him.”
After Clark: Where do we go from here?
Is the question of whether a statement is
testimonial an adequate measure for
reliability concerns?
After Clark: Where do we go from here?
What is the future of the hearsay rules, and
how should reliability concerns get raised?
After Clark: Where do we go from here?
Due Process
After Clark: Where do we go from here?
How do you determine whether a statement is
testimonial?
Ohio v. Clark,
135 S. Ct. 2173, 192
L. Ed. 2d 306 (2015)
WHAT DOES THIS MEAN??
And in determining whether a
statement is testimonial, “standard
rules of hearsay, designed to identify
some statements as reliable, will be
relevant.” Id., at 358-359, 131 S. Ct.
1143, 179 L. Ed. 2d 93. In the end, the
question is whether, in light of all the
circumstances, viewed objectively, the
“primary purpose” of the conversation
was to “creat[e] an out-of-court
substitute for trial testimony.” Id., at
358, 131 S. Ct. 1143, 179 L. Ed. 2d 93.