The Confrontation Clause: testimonial statements, emergency questioning, forensic reports, and codefendant confessions

Black-letter propositions

1. 01

   The Confrontation Clause bars admission of testimonial statements of a witness who did not appear at trial unless the witness was unavailable to testify and the defendant had a prior opportunity for cross-examination.

2. 02

   The clause's primary object is testimonial hearsay, and interrogations by law enforcement officers fall squarely within that class, so a statement made during a station-house interrogation about a past crime is testimonial.

3. 03

   Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose is to enable police assistance to meet an ongoing emergency, and they are testimonial when there is no ongoing emergency and the primary purpose is to establish past events potentially relevant to later prosecution.

4. 04

   A 911 call describing events as they are happening and asking for help in an emergency is ordinarily nontestimonial, while a victim's statements to officers who arrive after the event, when no emergency is in progress and the officers are investigating past conduct, are testimonial.

5. 05

   A victim's identification and description of a shooter and the shooting location, given to police to enable them to meet an ongoing emergency, are not testimonial.

6. 06

   A statement qualifies as testimonial if its primary purpose is to create an out-of-court substitute for trial testimony, and courts consider all of the relevant circumstances, including the informality of the setting and the declarant's age.

7. 07

   A very young child's statements to teachers about abuse, made to identify and end a threat and not to create evidence for prosecution, are not testimonial, because statements by very young children will rarely, if ever, implicate the Confrontation Clause.

8. 08

   Sworn certificates of a forensic analyst stating the weight and identity of a substance are testimonial affidavits, so the prosecution may not introduce them without the analyst's live testimony unless the analyst is unavailable and the defendant had a prior chance to cross-examine.

9. 09

   The prosecution may not introduce a forensic laboratory report containing a testimonial certification through the in-court testimony of an analyst who did not sign the certification or personally perform or observe the test.

10. 10

    In a joint trial, admission of a nontestifying codefendant's confession that implicates the defendant violates the defendant's right of cross-examination, despite an instruction to the jury to consider it only against the codefendant.

Use this attack sequence under time

Common wrong turns

• A statement can satisfy a hearsay exception and still violate the Confrontation Clause if it is testimonial.
• Emergency statements that help police respond to a present danger are generally not testimonial.
• A different analyst cannot simply read another analyst's testimonial report to the jury.
• A limiting instruction does not cure the admission of a nontestifying codefendant's confession that implicates the defendant.

Worked example

A woman calls 911 while an attacker is still in her home, and the caller says he is hitting her and gives his name. She does not appear at trial, and the prosecution plays the recording.

Practice this topic

The Crawford rule and its primary-purpose test

Crawford v. Washington held that the state's use of a wife's recorded statement to police, after she did not testify because of the spousal privilege, violated the Confrontation Clause, because where testimonial statements are at issue the only sufficient indicium of reliability is confrontation, and the clause admits testimonial statements of an absent witness only if the witness is unavailable and the defendant had a prior opportunity for cross-examination.

Davis v. Washington held that statements are nontestimonial when made during police interrogation under circumstances objectively indicating that the primary purpose is to enable police assistance to meet an ongoing emergency, and testimonial when there is no such emergency and the primary purpose is to establish or prove past events, so a 911 caller's statements were nontestimonial but a domestic-violence victim's statements to officers who arrived after the event were testimonial.

Later applications

Michigan v. Bryant held that a dying victim's identification and description of the shooter and the location were not testimonial because their primary purpose was to enable police assistance to meet an ongoing emergency. Ohio v. Clark held that a young child's statements to his teachers about abuse were not testimonial, because they were made to identify and end a threat and not to create evidence, and because statements by very young children will rarely if ever implicate the Confrontation Clause.

Melendez-Diaz v. Massachusetts held that sworn analysts' certificates stating that a substance was cocaine of a certain weight were testimonial affidavits and that the defendant was entitled to confront the analysts. Bullcoming v. New Mexico held that the prosecution could not introduce a forensic laboratory report with a testimonial certification through an analyst who did not sign it or perform the test.

Codefendant confessions

Bruton v. United States held that admission of a nontestifying codefendant's confession implicating the defendant in a joint trial violated the defendant's right of cross-examination under the Confrontation Clause, despite the judge's instruction to disregard it against the defendant, because of the substantial risk that the jury looked to the confession in determining his guilt.

Frequently asked questions