Petitioner (Violated 6th Amendment right to confrontation)
The evidence would violated is
const. right to be confronted with the witnesses against him.
Ohio v. Roberts it does not bar
admission of an unavailable witness's statement against a
criminal defendant if the statement bears "adequate 'indicia of
To meet that test, evidence must
either fall within a
"firmly rooted hearsay exception" OR
bear "particularized guarantees of
Trial court (particularized guarantees
Admitted the statement on the
[particularized guarantees of trustworthiness],
Sylvia was not shifting blame but
rather corroborating her husband's
story that he acted in self-defense or "justified
She had direct knowledge as an
She was describing recent events;
She was being questioned by a
"neutral" law enforcement officer.
The prosecution played the tape for
the jury and relied on it in closing, arguing that it was
"damning evidence" that "completely refutes [petitioner's] claim
The jury convicted petitioner of
The Sixth Amendment's Confrontation Clause
Provides that, "[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him."
We have held that this bedrock
procedural guarantee applies to both federal and state
Unavailable witness's out-of-court statement may be admitted
So long as [the out-of-court
statement] has adequate indicia of reliability
Falls within a "firmly rooted
hearsay exception" or
Bears "particularized guarantees of
That this test strays from the
original meaning of the Confrontation Clause and urges us to
One could plausibly read "witnesses
against" a defendant to mean those who actually testify at
Those whose statements are offered
History (Civil, Common-law)
The common-law tradition is one of
live testimony in court subject to adversarial testing.
The civil law condones examination
in private by judicial officers.
Reject that Confrontation Clause
Only applies to in court statement
Rejects that Out-of Court introduced
depends on the law of evidence for the time being.
Does not implicate the 6th
Might be unreliable evidence and a
good candidate for exclusion.
Ex parte Examinations
Might be admissible under modern
Confrontation Clause Application
It applies to witnesses against the
accursed-in other words, those who bear testimony.
Testimony is "[a] solemn declaration or affirmation made for the
purpose of establishing or proving some fact."
Bears Testimony Example
An accuser who makes a formal statement to government officers
Does Not Bear Testimony
A person who makes a casual remove to an acquaintance does not
Testimonial Statements (ex parte in-court testimony or its
material such as affidavits,
prior testimony that the defendant was unable to cross-examine,
similar pretrial statements that declarants would reasonably
expect to be used prosecutorially,"
"extrajudicial statements . . . contained in formalized
testimonial materials, such as affidavits, depositions, prior
testimony, or confessions,"
These formulations all share a
common nucleus and then define the Clause's coverage at various
levels of abstraction around it.
Regardless of the precise
articulation, some statements qualify under any definition--for
example, ex parte testimony at a preliminary hearing.
Statements Taken By Police Officers
Statements taken by police officers
in the course of interrogations are
also testimonial under even a narrow standard.
Police interrogations bear a
striking resemblance to examinations by justices of the peace in
The statements are not sworn
testimony, but the absence of oath was not dispositive.
Court Sylvias (wife)
recorded statement, knowingly given in response to structured
qualifies under any conceivable definition.
Discussion Right of Confrontation
The text of the Sixth Amendment does
not suggest any open-ended exceptions from the confrontation
requirement to be developed by the courts.
Admits Hearsay Exceptions
Rather, the "right . . . to be
confronted with the witnesses against him," is most naturally
read as a reference to the right of confrontation at common law,
admitting only those exceptions established at the time of the
Dying Declaration (Must be accepted, sui generis [of its own
The existence of that exception as a general rule of criminal
hearsay law cannot be disputed.
The exception must be accepted on
Mattox deceased witnesss
At first trial, the Df had an
adequate opportunity to confront the witness.
At prior trial or preliminary
hearing testimony is admissible ONLY IF the Df had an adequate
opportunity to cross-examine.
However, testimony would be EXCLUDED
if UNAVAILABILITY was not ESTABLISHED.
Accomplice Confession (Excluded If)
Accomplice confessions were the Df -
had not opportunity to cross-examine.
Making unwittingly [unaware] statement to the FBI
Admissible, If unavailable at trial AND prior opportunity to
When a Declarant appears for cross-examination
The Confrontation Clause places
no constraints at all
on the USE of his prior testimonial
does NOT bar admission of a statement
so long as the declarant is present at trial to defend or
The Clause also
does not bar the use of testimonial
statements for purposes other than establishing the
truth of the matter asserted.
Discussion V - Roberts Conditions
Firmly root hearsay exceptions.
Bears particularized guarantees of
Discussion C Roberts Failing on Full Display
Sylvia Crawford made her statement
while in police custody,
"depend[ed] on how the investigation
Her answers to leading questions
from police detectives implicated her husband in Lee's stabbing
and undermined his self-defense claim.
Trial Court Allowed testimony because
Sylvia had direct knowledge and was
an eye witness.
Framers would have been astounded
Only cross-examination could reveal
her perception of her situation.
Washington State Supreme Court
Gave dispositive weight to ambiguous statements.
Reversed Decision to uphold the Sixth Amendment
Otherwise do a re-analysis would
perpetuate what the Sixth Amendment condemns.
It is difficult to imagine Roberts
providing any meaningful protection.
(non-testimonial && testimonial)
Non-testimonial hearsay is at issue
Where non-testimonial hearsay is at
issue, it is wholly consistent with the Framers' design to
afford the States
flexibility in their development of hearsay law--as
does Roberts, and as would an approach that
exempted such statements
from Confrontation Clause scrutiny altogether.
Testimonial evidence is at issue
Where testimonial evidence is at
issue, however, the Sixth
Amendment demands what the common law required:
unavailability and a prior opportunity for cross-examination.
In this case, the State admitted
Sylvia's testimonial statement against petitioner, despite the
fact that he had no opportunity to cross-examine her.
That alone is sufficient to make out
a violation of the Sixth Amendment.
Roberts notwithstanding, we decline
to mine the record in search of indicia of reliability.
Where testimonial statements are at
issue, the only indicium of reliability sufficient to satisfy
constitutional demands is the one the Constitution actually
The judgment of the Washington Supreme Court is reversed, and
the case is remanded for further proceedings not inconsistent
with this opinion.
It is so ordered.