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at 189. Thus, where police responding to a domestic violence report interrogated a woman in the living room while her husband was being questioned in the kitchen, there was no present threat to the woman, so such information as was solicited was testimonial. . The majority of the Court continues to apply the clause to any hearsay statement made for the “primary purpose” of criminal prosecution. Whether it includes, as mentioned above, a hearsay declarant—a person whose out-of-court statement is offered in evidence against the accused, though that person never appears in court to testify (and thus is not subject to cross-examination)—is a question that continues to challenge the courts. Offering the preliminary hearing testimony violated the defendant’s right of confrontation. By the time the American Constitution was drafted, trials featuring live testimony in open court were typical in English and American criminal courts, though few defendants were represented by counsel, and the practice of cross-examination was in its infancy. The guide is an excellent research tool for students to use to gain a deeper understanding of one of our nation’s founding documents and the establishment of the federal government. 557 (1992), John G. Douglass, Beyond Admissibility: Real Confrontation, Virtual Cross-Examination, and the Right to Confront Hearsay, 67 Geo. The converse is equally true: merely because evidence is admitted in violation of a long-established hearsay rule does not lead to the automatic conclusion that confrontation rights have been denied.”238 In holding admissible a statement made to police during custodial interrogation, the Court explained that “[T]he Confrontation Clause does not require excluding from evidence the prior statements of a witness who concedes making the statements, and who may be asked to defend or otherwise explain the inconsistency between his prior and his present version of the events in question, thus opening himself to full cross-examination at trial as to both stories.”239, The Court favored a hearsay exception over a cross-examination requirement in Dutton v. Evans,240 upholding the use as substantive evidence at trial of a statement made by a witness whom the prosecution could have produced but did not.241 Presentation of a statement by a witness who is under oath, in the presence of the jury, and subject to cross-examination by the defendant is only one way of complying with the Confrontation Clause, four Justices concluded. Hearsay statements made for other purposes, like 911 calls for emergency assistance, are not “testimonial” and therefore not excluded from evidence by the Confrontation Clause. Because the defendant could not cross-examine the accomplice with regard to the truth of the confession, the Court held that the Confrontation Clause had been violated. Can you spell these 10 commonly misspelled words? 557 (1988), Graham C. Lilly, Notes on the Confrontation Clause and Ohio v. Roberts, 36 U. Fla. L. Rev. the only indicators of reliability sufficient to satisfy constitutional Delivered to your inbox! Where testimonial statements are at issue, Several recent cases suggest that the justices have developed differing views on the breadth of the clause. contained in formalized testimonial material, such as affidavits, depositions, prior testimony, or confessions; statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.”251 The Court added that it would “leave for another day any effort to spell out a comprehensive definition of ‘testimonial,’ ” but, “[w]hatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.”252. Hearsay is the prior out-of-court statements of a person, offered affirmatively for the truth of the matters asserted, presented at trial either orally by another person or in writing. In general. . Post the Definition of confrontation clause to Facebook, Share the Definition of confrontation clause on Twitter. L. Rev. A tape of that call was admitted as evidence of a felony violation of a domestic no-contact order, despite the fact that the woman in question did not testify. Kentucky v. Stincer (1987). But the difference in approach is explained by the fact that Justice O’Connor’s views, expressed in a concurring opinion in Coy, became the opinion of the Court in Craig.276 Beginning with the proposition that the Confrontation Clause does not, as evidenced by hearsay exceptions, grant an absolute right to face-to-face confrontation, the Court in Craig described the clause as “reflect[ing] a preference for face-to-face confrontation.”277 This preference can be overcome “only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.”278 Relying on the traditional and “transcendent” state interest in protecting the welfare of children, on the significant number of state laws designed to protect child witnesses, and on “the growing body of academic literature documenting the psychological trauma suffered by child abuse victims,”279 the Court found a state interest sufficiently important to outweigh a defendant’s right to face-to-face confrontation. This conclusion was reached even though the witnesses could be viewed by the defendant’s counsel and by the judge and jury, even though the right of cross-examination was in no way limited, and even though the state asserted a strong interest in protecting child sex-abuse victims from further trauma.272 The Court’s opinion by Justice Scalia declared that a defendant’s right during his trial to face-to-face confrontation with his accusers derives from “the irreducible literal meaning of the clause,” and traces “to the beginnings of Western legal culture.”273 Squarely rejecting the Wigmore view “that the only essential interest preserved by the right was cross-examination,”274 the Court emphasized the importance of face-to-face confrontation in eliciting truthful testimony. been previously ascertained by law, and to be informed of the nature and HEARSAY AND THE CONFRONTATION CLAUSE A. “[O]nce a witness is shown to be unavailable .

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