Confrontation

Lilly v. Virginia, 527 U.S. 116, 119 S.Ct. 1887 (1999).

The Supreme Court reversed this state court murder conviction on the grounds that the state was permitted to introduce the statement of a co-defendant that implicated the defendant. The co-defendant was not tried with the defendant (thus, this was not a Bruton situation) and he invoked his Fifth Amendment right not to testify. In his out-of-court statement, he admitted some participation in the crime spree, but implicated the defendant (his brother) in the murder. The state argued that this was admissible under the state exception to the hearsay rule for statements against the declarant's penal interest. The Supreme Court held that the statement implicating the defendant in the murder was not sufficiently against the declarant's penal interest to be admitted. The admission of this testimony violated the Confrontation Clause of the Sixth Amendment.

White v. Illinois, 502 U.S. 346 (1992)

Statements of a child molestation victim which were admitted pursuant to the hearsay exceptions for spontaneous declarations and as part of a medical examination were admissible even without proof of the declarant’s unavailability.

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

The right of confrontation may be satisfied absent a physical, face-to-face confrontation at trial where the denial of such confrontation is necessary to further an important public policy and only where the testimony’s reliability is otherwise assured. The State’s interest in protecting a child witness from the trauma of testifying in a child abuse case is sufficiently important to justify the use of a special procedure such as allowing the child to testify by video tape. In order to use such a procedure, however, there must be a finding by the trial court which is case specific. In this case, the child was permitted to testify through a one-way closed circuit television.

Idaho v. Wright, 497 U.S. 805 (1990)

The Supreme Court holds that the admission of hearsay statements made by a child to an examining pediatrician violated the defendant’s rights under the confrontation clause of the Sixth Amendment. The Court held that the child’s statements did not fall within a traditional hearsay exception and lacked “particularized guarantees of trustworthiness” because the doctor had conducted the interview without procedural safeguards: He failed to videotape the interview, asked leading questions, and had a preconceived idea of what the child should be disclosing.

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

In child molestation cases, the Iowa courts permit a screen to be placed which prevents the child witness from seeing the defendant during trial. The United States Supreme Court holds that this violates the defendant’s right to confront the witnesses against him.

United States v. Owens, 484 U.S. 554 (1988)

The victim of a brutal assault was able to identify the defendant while in the hospital recuperating. By the time of trial, the witness was no longer capable of identifying the defendant as the assailant, but was able to recall identifying him while in the hospital. The United States Supreme Court holds that this does not violate the confrontation clause or the rule against hearsay and affirms the conviction based on the out-of-court identification and the in-court testimony about that identification.

United States v. Brooks, 772 F.3d 1161 (9th Cir. 2014)

The prosecutor asked a DEA agent to tell the jury “in summary” what he was told by a postal supervisor. The fact that the agent summarized what he was told rather than reciting word-for-word what he was told did not alleviated the Confrontation Clause violation. The government’s alternative theory that the statements were not offered for the truth of the matter asserted was also rejected by the Ninth Circuit.

Blackston v. Rapelje, 780 F.3d 340 (6th Cir. 2014)

If the state introduces a prosecution witness’s prior sworn testimony at defendant’s trial, the defense is entitled to introduce evidence that the witness recanted that testimony. This is implicit in the right to confront one’s accusers. The prior sworn testimony in this case occurred at the defendant’s first trial. After that trial, two of the principal witnesses recanted. At the retrial, the two witnesses refused to testify and the state was permitted to read their testimony from the first trial. The defense was prohibited from impeaching their testimony with the recantations. This errer required granting a writ of habeas corpus.

United States v. Jordan, 742 F.3d 276 (7th Cir. 2014)

Though the Confrontation Clause does not require that the government present non-hearsay evidence at a supervised release revocation hearing, the trial court must explicitly balance the defendant’s Confrontation Clause rights with the government’s reasons for denying these rights. See Morrissey v. Brewer, 408 U.S. 471 (1972).

Ortiz v. Yates, 704 F.3d 1026 (9th Cir. 2012)

The defense sought to cross-examine the defendant’s wife regarding whether she was afraid to deiate from her initial statements accusing her husband of abuse because of threats the prosecutor’s investigator made towards her about changing her story (that is, the investigator had threatened to put her in prison for lying at the preliminary hearing if she did not stick to that version of events). The trial court prevented this line of questioning. This violated the defendant’s right of Confrontation.

United States v. Walker, 673 F.3d 649 (7th Cir. 2012)

The government offered considerable evidence about what an informant said, and did, without putting the informant on the stand. Undercover tapes in which the informant talked to the defendant and statements that the informant made to the officers were also introduced. The Seventh Circuit held that the Confrontation Clause was violated, but it was harmless error.

Sussman v. Jenkins, 636 F.3d 329 (7th Cir. 2011)

Trial counsel failed to provide pretrial notice of the intent to introduce evidence that the child molestation victim had made prior false allegations of sexual abuse against another man (his father). Trial counsel’s failure was ineffective assistance of counsel, because such evidence – prior false allegation evidence – was admissible and significant evidence relating to the child’s credibility and motive for fabricating allegations (i.e., to get attention, or for punishing people for not paying attention to him). This evidence was clearly admissible under the Confrontation Clause.

Adamson v. Cathel, 633 F.3d 248 (3rd Cir. 2011)

The defendant testified and explained that his confession was false and that he had been shown the statements of his alleged co-conspirators prior to making his confession and that is how he learned the facts that formed the basis for his confession. When the prosecutor cross-examined the defendant, he read to him significant portions of the co-conspirator’s statement (much of which was unrelated to the defendant’s own confession) that clearly implicated the defendant in the crimes. The trial court did not issue a limiting instruction to caution the jury not to consider the co-conspirator’s statement for the truth of the matter asserted. Informing the jury about the co-conspirator’s statement that implicated the defendant violated the defendant’s rights under the Confrontation Clause and required setting aside the conviction. See Tennessee v. Street, 471 U.S. 409 (1985) (approving use of co-conspirator’s statement in this manner, but only with a limiting instruction).

Perkins v. Herbert, 596 F.3d 161 (2d Cir. 2010)

The state trial court concluded that the defendant procured a witness’s unavailability and therefore, the hearsay statement of the witness was admissible. The factual finding of the trial court, however, was not supported by sufficient evidence and the admission of the witness’s grand jury testimony violated the Confrontation Clause. Harmless error.

Earhart v. Konteh, 589 F.3d 337 (6th Cir. 2009)

Over objection of the defendant, the state utilized a deposition of one witness who had a prepaid vacation scheduled for the day of trial. There was no effort made by the state to secure the witness’s presence and no showing of necessity was made. Using the deposition violated the Confrontation Clause.

United States v. Tirado-Tirado, 563 F.3d 117 (5th Cir. 2009)

The government insisted on using the videotaped deposition of a witness who was deported to Mexico after the deposition. The defendant argued that the witness was not “unavailable” because the government did not make good faith efforts to secure the attendance of the witness. The Fifth Circuit agreed. The court lists the various measures that the prosecution could have taken to assure, or at least improve the chances that, the witness would appear at trial. In the absence of a good faith effort on the part of the government to secure the attendance of the witness, using the deposition violated the Confrontation Clause. The fact that the defendant had the full opportunity to cross examine the witness at the deposition does not change the fact that the witness was not legally “unavailable for trial” because of the absence of good faith efforts to secure his appearance and, therefore, the defendant’s Confrontation Clause rights were violated.

Taylor v. Cain, 545 F.3d 327 (5th Cir. 2008)

The state offered testimony from an investigating officer about the investigation he performed including the information provided to him by other witnesses to the murder that implicated the defendant as the perpetrator. This constituted inadmissible hearsay that violated the defendant’s right of Confrontation.

Fratta v. Quarterman, 536 F.3d 485 (5th Cir. 2008)

The defendant was tried in state court for hiring hitmen to kill his wife. The trial was conducted pre-Crawford. At trial, the statements of the hitmen, neither of whom testified, were admitted. To some extent the statements were redacted to eliminate the defendant’s name as the employer for the hit. Nevertheless, the statements still implicated the defendant. The Fifth Circuit held that the evidence violated the Confrontation Clause even as it was interpreted pre-Crawford.

Barbe v. McBride, 521 F.3d 443 (4th Cir. 2008)

The defendant was charged with child sexual assault. An expert testified that the victim exhibited signs of sexual abuse. The defendant sought to introduce evidence that the defendant had been abused by other adults (and the child had made prior accusations about these prior assaults). Relying on the state rape shield statute, the trial court excluded the evidence. The Fourth Circuit granted the writ. Excluding evidence that would provide an alternative explanation for the expert’s findings violated the defendant’s right to confront the evidence against him. Pursuant to Michigan v. Lucas, 500 U.S. 145 (1991), the trial court must make a case-by-case determination whether the state evidence rule trumps the Sixth Amendment. In this case, the state trial court invoked a per se ban on any evidence of prior sexual activity of the victim.

United States v. Becker, 502 F.3d 122 (2d Cir. 2007)

Prior to Crawford, the Second Circuit had held that a person’s plea allocution was sufficiently against the person’s penal interest that it would be admissible in another person’s trial. Pursuant to that rule, a co-conspirator’s statement at his plea was introduced against the defendant in this case to prove the existence of a conspiracy. Post-Crawford, this violated the Confrontation Clause and required that the defendant’s conviction be set aside. Same result was reached in United States v. Riggi, 541 F.3d 94 (2d Cir. 2008).

United States v. Hearn, 500 F.3d 479 (6th Cir. 2007)

Permitting the government to introduce considerable hearsay evidence to “explain the officer’s conduct” in keeping the defendant under surveillance, violated the rule against hearsay as well as the defendant’s Confrontation Clause rights.

United States v. Powers, 500 F.3d 500 (6th Cir 2007)

The trial court erred when it permitted the prosecution to elicit evidence about what the confidential informant told the police. The evidence implicated the defendant was not necessary to provide background, or to explain the officers’ conduct. Harmless error.

Winzer v. Hall, 494 F.3d 1192 (9th Cir. 2007)

The defendant was alleged to have said to his wife and child that he was going to “smoke them” (kill them). They called the police and the police officer interviewed them and they confirmed that this happened. The wife did not testify at trial and the child, who did testify, did not remember the event. The police officer testified about the statements made to him by the two “victims.” Even though this trial was held pre-Crawford, the evidence was admitted in violation of the defendant’s Confrontation Clause rights and the Ninth Circuit granted a writ of habeas corpus. Because the statements were made to the police hours after the supposed threat, they did not qualify as “excited utterances.”

Vasquez v. Jones, 496 F.3d 564 (6th Cir. 2007)

The state trial court’s decision to bar the defense from introducing impeachment evidence relating to a hearsay declarant’s criminal record violated the Confrontation Clause. The right to offer evidence of a witness’s criminal record to demonstrate his lack of credibility is a core principle of the Confrontation Clause and applies with equal force to a “witness” who does not appear at trial but whose out-of-court statements are offered through a hearsay exception.

United States v. Thomas, 453 F.3d 838 (7th Cir. 2006)

Even post-Crawford, if the government seeks to introduce hearsay that does not qualify under a traditional hearsay exception, the test of Ohio v. Roberts must be satisfied, i.e., particularized guarantees of trustworthiness. Even though Crawford held that the Confrontation Clause only applied to testimonial statements, this did not mean that non-testimonial statements were exempt from Confrontation Clause analysis. This case involved a “non-testimonial” 911 call, that the court held satisfied the Ohio v. Roberts standard.

United States v. Larson, 460 F.3d 1200 (9th Cir. 2006)

The trial court erred in barring defense counsel from cross-examining a cooperating witness about the mandatory minimum sentence he would face but for his cooperation. Harmless error. The en banc court reached the same conclusion, finding that excluding evidence about the mandatory minimum sentence was a Confrontation Clause violation, but was harmless. (August 1, 2007 decision).

Kittelson v. Dretke, 426 F.3d 306 (5th Cir. 2005)

At the defendant’s child molestation trial, the state was permitted to introduce evidence that suggested that another girl had alleged that the defendant molested her, as well. That girl, in fact, had made the allegation the same time as the victim (they were friends) but immediately recanted her allegation. Allowing the prosecutor to introduce the evidence (albeit by inference) and barring the defense from introducing the fact that the girl had, in fact, made the statement, but then recanted, denied the defendant his Confrontation Clause rights.

United States v. Bordeaux, 400 F.3d 548 (8th Cir. 2005)

After the child witness expressed fear of the defendant, the court allowed the witness to complete her testimony via two-way closed-circuit television. Though 18 U.S.C. § 3509(b)(1)(B)(i) permits this procedure in certain circumstances, the Eighth Circuit held that the Confrontation Clause was violated in this case. Pursuant to Maryland v. Craig, 497 U.S. 836 (1990), the court may employ closed-circuit television where there is a finding that the child is fearful of testifying in front of the defendant. It is not enough, however, if the child is simply fearful of testifying in a courtroom. If the fear is of the courtroom generally, the court may permit testimony in a more accommodating environment, but still in the presence of the defendant. To the extent that § 3509(b)(1)(B)(i) permits the use of closed-circuit television based on the child’s fear of the courtroom, it violates the Confrontation Clause.

United States v. Yates, 438 F.3d 1307 (11th Cir. 2006)(en banc)

Two-way video-conferencing of a witness’s testimony does not satisfy the Confrontation Clause. The government used a two-way teleconference to obtain the testimony of an out-of-country witness. Though the witness could see the defendant and vice-versa, this was not adequate face-to-face confrontation.

Fischetti v. Johnson, 384 F.3d 140 (3rd Cir. 2004)

Defendant was tried twice in state court for a series of burglaries. At the second trial, some of the burglary witnesses’ testimony was presented through the transcript of their testimony at the first trial. However, there was no showing that those witnesses were unavailable to testify at the second trial. Admitting the prior testimony violated his Confrontation Clause rights.

United States v. Turning Bear, 357 F.3d 730 (8th Cir. 2004)

After briefly questioning the child-victim, the court concluded that because the child was afraid of the defendant (her father) and also afraid of the prosecutor and the jury, the child would testify via closed-circuit television. The Eighth Circuit concluded that the court’s findings were not adequate to comply with the requirements of Maryland v. Craig, 497 U.S. 836 (1990). The trial court failed to find that the child’s fear was prompted by the father, as opposed to the courtroom, in general. In fact, the child testified at the hearing relating to her inability to testify in court and it was apparent that it was the jury, more than the defendant, that frightened her. See also Hoversten v. Iowa, 998 F.2d 614 (8th Cir. 1993).

Brown v. Keane, 355 F.3d 82 (2d Cir. 2004)

The state offered evidence that a 911 caller reported that two men were in front of a bar shooting. The state offered the tape under the “present sense impression” exception to the hearsay rule. The federal district court, on habeas review, concluded that it was not certain that the caller was actually witnessing the shooting; it was possible the caller had earlier seen the two men, and then heard shooting and assumed that the men were involved in the shooting. The lower court concluded, however, that the present sense impression exception to the hearsay rule was “firmly rooted” and therefore the evidence should be admitted, despite the fact that there was an absence of a particularized guarantee of trustworthiness. The Second Circuit reversed: First, the court concluded that the tape did not qualify as a present sense impression for the same reason that the lower court found a lack of trustworthiness – there was no proof that the caller was actually describing events that he was contemporaneously witnessing. The court also rejected the theory that the caller’s statement qualified as an “excited utterance.” Again, however, excitement without contemporaneous observation does not qualify under that hearsay exception.

Lewis v. Wilkinson, 307 F.3d 413 (6th Cir. 2002)

The Sixth Circuit held that the application of a state rape shied statute in this rape prosecution denied the defendant of his Sixth Amendment right of Confrontation. In the victim’s diary, there were various references to her other sexual conduct and the fact that she was apparently viewed by boys as a “nympho.” She wrote, “I’m just not strong enough to say no to them. I’m tired of being a whore. This is where it ends.” Excluding this evidence was reversible error.

United States v. Moses, 137 F.3d 894 (6th Cir. 1998)

The trial court violated the defendant's Confrontation Clause rights (and the Child Victims' and Child Witnesses" Rights Act – 18 U.S.C. § 3509(b)(1)(B)) when it permitted a child witness to testify by closed circuit television. The Act provides that a closed circuit television may be used where there is a case-specific showing a child witness would suffer substantial fear or trauma and be unable to testify or communicate reasonably because of the physical presence of the defendant. The trial court's findings in this case were insufficient to trigger the provisions of the Act. The witness, in fact, specifically stated that she was not afraid of the defendant. The testimony of a government expert – a social worker – on this subject was also insufficient.

Crespin v. New Mexico, 144 F.3d 641 (10th Cir. 1998)

Admitting the co-conspirator’s statement that implicated the defendant was erroneous. The state’s theory that the statement was “against the declarant’s penal interest” did not survive appellate habeas scrutiny. The Tenth Circuit held that the state courts failed to properly apply the “indicia of reliability” test. The court reiterated the “time-honored” principle that “a codefendant’s confession inculpating the accused is inherently unreliable.”

Horton v. Zant, 941 F.2d 1449 (11th Cir. 1991)

Under Georgia law, a co-conspirator declaration may be admissible during the “concealment phase” of the conspiracy – that is, after the offense has been completed, but before the culprits have been caught. The statement need not be in furtherance of the conspiracy. Here, a co-conspirator statement was admitted which fell within the expanded Georgia definition. The court holds that in this case, the hearsay statement violated the confrontation clause. The statement was exculpatory as to the declarant and was wholly declarative of a past event (i.e., the defendant killed the decedent). This statement did not have indicia of reliability. Though Dutton v. Evans, 400 U.S. 74 (1970), held the Georgia statute constitutional, that case dealt with a particular application – an out-of-court declaration which did have indicia of reliability. The statement in this case did not have such characteristics and admitting the statement was a confrontation clause violation. Furthermore, the error was not harmless.

Gholston v. Jones, 848 F.2d 1156 (11th Cir. 1988)

The defendant’s parole revocation was based solely on the unsworn violation report by a parole officer. This violated the parolee’s due process right to confront the witnesses against him.

Brown v. Dugger, 831 F.2d 1547 (11th Cir. 1987)

Two defendants were arrested and charged with murder. They were put in a room together with the police officer encouraging one to incriminate the other. At trial, the police officer testified that one of the defendants did, in fact, incriminate the other. This violated the defendant’s right to confront the witnesses and is inadmissible hearsay (a Bruton violation). The murder sentence was vacated based on this Sixth Amendment violation.