Confrontation clause

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

This clause mandates live witnesses at trial. This affects criminal defense in two main ways.

In-court Appearance of witness

The Supreme Court held in Maryland v. Craig that a witness may give testimony via CCTV.

Maryland v. Craig (1990) 497 U.S. 836

Coy v. Iowa (1988) 487 U.S. 1012

People v. Lujan (2012) 211 Cal.App.4th 1499

People v. Murphy (2003) 107 Cal.App.4th 1150

People v. Williams (2002) 102 Cal.App.4th 995

Masking

People v. Edwards (Mar. 18, 2022, B309273)

Out-of-court Testimonial statements

A Crawford or confrontation clause issue is not the same as hearsay, but closely related. The main rule from Crawford v. Washington is that testimonial hearsay statements must be excluded unless the witness is unavailable and there has been a prior opportunity to cross-examine the witness. A specific line from the case is: “Testimonial statements of witnesses absent from trial [are] admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” (Crawford v. Washington (2004) 541 U.S. 36, 59.)

The Confrontation Clause "does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.” (Crawford v. Washington (2004) 541 U.S. 36, 59, fn. 9; accord People v. Combs (2004) 34 Cal.4th 821; People v. Thomas (2012) 53 Cal.4th 771.)

Before Crawford, an out-of-court statement by an unavailable declarant was not excluded if 1) it was within a "firmly rooted hearsay exception" or 2) possessed "particular guarantees of trustworthiness." (Ohio v. Roberts (1980) 448 U.S. 56.)

Definition of testimonial

Cases in which statements were testimonial

Case

Facts

There is some question as to whether mandatory reporters are considered law enforcement agents for purposes of making statements testimonial. See People v. Salinas (1982) 131 Cal.App.3d 925.

Cases in which statements were non-testimonial

Case

Facts

Prior opportunity for cross-examination

Berrotran v. Superior Court (Mar. 7, 2022, S259522) [1]

Exceptions

Rule of completeness

People v. Parrish (2007) 152 Cal.App.4th 263, held that under Evidence Code section 356, the Rule of Completeness may make admissible statements that would otherwise be excluded under Crawford:

We conclude, by analogy to the rule of forfeiture by wrongdoing, that statements otherwise admissible under section 356 are generally not made inadmissible by Crawford. This is because, like forfeiture by wrongdoing, section 356 is not an exception to the hearsay rule that purports to assess the reliability of testimony. The statute is founded on the equitable notion that a party who elects to introduce a part of a conversation is precluded from objecting on Confrontation Clause grounds to introduction by the opposing party of other parts of the conversation which are necessary to make the entirety of the conversation understood. Section 356 is founded not on reliability but on fairness so that one party may not use "selected aspects of a conversation, act, declaration, or writing, so as to create a misleading impression on the subjects addressed." [Citations.] As Crawford forbids only the admissibility of evidence under statutes purporting to substitute another method for confrontation clause test of reliability, evidence admissible under section 356 does not offend Crawford.