The Confrontation Clause

The Confrontation Clause is a topic that might show up in Criminal Procedure questions. Under this clause, prior testimonial evidence may not be admitted unless the declarant is unavailable and the defendant had an opportunity to cross examine the declarant at the time that the statement was made. An important consideration in all of these questions is to determine what is meant by "testimonial."

At a minimum, statements from a preliminary hearing, a grand jury proceeding, a former trial, or a police interrogation, are testimonial. Importantly, statements from a police interrogation intended to aid the police in responding to an ongoing emergency (911 calls, for example) are not testimonial. Those are likely among the most common non-testimonial statements tested in this area. 

Worth noting that if results of forensic lab tests are offered for proof of the matter asserted, such results are testimonial and inadmissible unless the person who did the testing is available for cross examination. 

This protection granted by the Confrontation Clause can be waived (or forfeited). A defendant is held to have forfeited a Confrontation Clause claim by wrongdoing. But not by all wrongdoing. Specifically, a Court will not find a forfeiture of the Confrontation Clause unless the wrongdoing was intended to keep the witness from testifying. So, for example, the fact alone that the defendant murdered a victim will not forfeit the defendant's right to not have a statement from the victim used against the defendant. But if the defendant murdered the victim with the intent that the victim would not then be able to testify against the defendant, forfeiture is proper.