CONFRONTATION

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

2. 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 thus applied, the Clause would abrogate virtually every hearsay exception. • Such a result has long been rejected as unintended and too extreme.

3. Ohio v. Roberts(1980) 448 U.S. 56 (cont.) • The Confrontation Clause was intended to exclude some hearsay • 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

4. Ohio v. Roberts(1980) 448 U.S. 56 (cont.) • The Confrontation Clause envisions: • A personal examination and cross-examination 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 • 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

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

6. Ohio v. Roberts(1980) 448 U.S. 56 (cont.) • The Confrontation Clause restricts admissible hearsay in two ways: • 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

7. 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.

8. 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. • Responsive to the need for certainty in the workaday world of conducting criminal trials.

9. Ohio v. Roberts(1980) 448 U.S. 56 (cont.) • The Confrontation Clause requires a showing that the witness is unavailable • 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”; • 2. or from a showing of “particularized guarantees of trustworthiness”.

10. Ohio v. Roberts(1980) 448 U.S. 56 (cont.) • 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

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

12. Lilly v. Virginia(1999) 527 U.S. 116 • Cross examination is the “greatest legal engine ever invented for the discovery of truth” • Old 16th and 17th 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.

13. Lilly v. Virginia(1999) 527 U.S. 116 (cont.) • Declaration against penal interest is too broad for meaningful Confrontation Clause analysis • Covers three categories: • 1. voluntary admissions against declarant • 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

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

15. 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 • 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 • But must meet reliability requirement

16. Lilly v. Virginia(1999) 527 U.S. 116 (cont.) • 3. evidence offered by prosecution to establish guilt of an alleged accomplice of defendant • This type of statement is inherently unreliable • Declarant is a person accused of the same criminal conduct as defendant • 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

17. Lilly v. Virginia(1999) 527 U.S. 116 (cont.) • Accomplice statements that shift blame are so untrustworthy that confrontation is required • 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

18. Crawford v. Washington(2004) 541 U.S. 36 • The right to confront accusers goes back to Roman times • 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 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

19. Crawford v. Washington(2004) 541 U.S. 36 (cont.) • 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 • Interrogators are those involved in investigative and prosecutorial functions

20. Crawford v. Washington(2004) 541 U.S. 36 (cont.) • 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 • Dying declaration is a historical deviation

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

22. Crawford v. Washington(2004) 541 U.S. 36 (cont.) • Ohio v. Roberts overruled • (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 • Reliability is an amorphous, if not entirely subjective, concept

23. Forfeiture by Wrongdoing • Giles v. California 554 U.S. ___; 128 S.Ct. 2678 (2008) • More than the act of killing the declarant is required • 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

24. Evid. Code sec. 1350: Must be a serious felony Unavailable Declarant Clear/convincing evidence linking party To prevent prosecution or arrest of party Death by homicide or kidnapping of declarant Memorialized in a tape recording or notarized writing 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.4th 1082, 1143-1147 Forfeiture by Wrongdoing (cont.)

25. Forfeiture by Wrongdoing (cont.) • People v. Banos (2009) 180 Cal.App.4th 483 • 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: • Preventing witness from testifying • Dissuading witness from reporting (can infer) • Silencing witness need not be sole motive

26. Davis v. Washington(2006) 547 U.S. 813 • Test for whether a statement is testimonial: • 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?

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

28. Melendez-Diaz v. Massachusetts(2009) ___ U.S. ___; 129 S.Ct. 2527 • “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 • Nature of the substance is an element the prosecution must prove to convict

29. Melendez-Diaz v. Massachusetts (cont.) • 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 • Thus, under Crawford, unless analysts are unavailable and petitioner had prior opportunity to cross, he is entitled to confront at trial

30. 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 • Gaps in the chain normally go to the weight, not the admissibility • But, what testimony is offered must be live • Documents re equipment maintenance may well qualify as non-testimonial records

31. Melendez-Diaz v. Massachusetts (cont.) • Dissent arguments: • 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

32. Melendez-Diaz v. Massachusetts (cont.) • 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 • 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 3rd class of witnesses – those helpful to the prosecution, but somehow immune to confrontation

33. Melendez-Diaz v. Massachusetts (cont.) • Further arguments by respondent and dissent: • 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 no report in response to interrogation • Response: • 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; • 3) voluntary witness is no less a witness against defendant – in any event testing and certificate were in response to police request

34. Melendez-Diaz v. Massachusetts (cont.) • 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 • Response: • 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

35. Melendez-Diaz v. Massachusetts (cont.) • Further arguments by respondent and dissent: • Analysts affidavits are akin to official and business records • Response: • 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

36. Melendez-Diaz v. Massachusetts (cont.) • Further arguments by respondent and dissent: • Should find no confrontation violation b/c defendant had the ability to subpoena the analysts • Response: • 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

37. Melendez-Diaz v. Massachusetts (cont.) • Further arguments by respondent and dissent: • 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 5th Amendment privilege

38. Melendez-Diaz v. Massachusetts (cont.) • 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: Chief Justice with dissent

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

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

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

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

43. Melendez-Diaz v. Massachusetts (cont.) • In California: • People v. Geier (2007) 41 Cal. 4th 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