The Sixth Amendment Confrontation guarantees a criminal defendant the right “to be confronted with the witnesses against him.” The Confrontation Clause applies in state and federal prosecutions and operates independently of any hearsay rules. Evidence otherwise admissible under the hearsay rules must nevertheless be excluded if it will violate the defendant’s right to confront and cross-examine the declarant.
Ohio v. Roberts made hearsay evidence admissible in a criminal case if it either fell under a firmly rooted hearsay exception or ”˜particularized guarantees of trustworthiness.’ Thus, the hearsay rules largely determined whether an out-of-court statement was admissible in a criminal case.
Crawford divorced Confrontation Clause analysis from hearsay analysis. The Ohio v. Roberts “firmly rooted exception” doctrine and the “particularized guarantees of trustworthiness” doctrine no longer apply to testimonial statements (unless the Court adopts the sui generis dying declaration doctrine). Thus, in a criminal case, the Confrontation Clause analysis does not depend upon either the hearsay rules or upon determinations of reliability. Instead, application of the Confrontation Clause depends upon whether the statement at issue is testimonial; and, if so, whether the witness (1) testifies at trial or (2) is unavailable and there has been a prior opportunity for cross-examination with the same or similar motives.
If the hearsay declaration offered against the defendant is testimonial, then the Confrontation Clause forbids its admission unless
a. the declarant testifies at the proceeding; or,
b. the Government can show
i. that the declarant is unavailable and
ii. that the defendant has had a prior opportunity for cross-examination
3. Declarant Testifies:
Once the out-of-court declarant appears for cross-examination at trial, “the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.” However, state and federal hearsay rules may still prohibit admission of the statement, notwithstanding the propriety of its admission under the Confrontation Clause.