Hearsay & The Confrontation Clause

There are similarities between the policies underlying the 6th Amendment's Confrontation Clause and the policies underlying the rule against hearsay.  But it's important to understand that even if a statement falls within a hearsay exception, the 6th Amendment still gives defendants the right to confront witnesses against them. 

Another way of saying this is that the use of an out-of-court statement by the prosecution might still violate the defendant's 6th Amendment rights even if that statement would not be excluded by the rule against hearsay.

Specifically, admitting an out-of-court statement offered by the prosecution will violate a defendant's 6th Amendment rights even if the statement falls within a hearsay exception if (1): the statement was testimonial; (2): the witness who made the statement is unavailable to testify at trial; and (3): the defendant has not had an opportunity to cross examine the witness before trial. 

What kind of statements are testimonial? It's been noted that statements made to a police officer in the course of an investigation are often testimonial. In addition, statements that a witness reasonably believed would be used as a part of a criminal prosecution, it has been suggested, are likewise testimonial.

It's also important to note what type of statements are not deemed testimonial. Although statements made to the police to assist in an investigation are generally deemed testimonial, statements made to the police to assist in an ongoing emergency are considered non-testimonial. This is an objective test: the relevant question is whether the circumstances objectively indicated that the primary purpose of the police interrogation was to enable the officers to meet an ongoing emergency. If so, the statements should not be deemed testimonial, and thus would not be excluded by the Confrontation Clause of the 6th Amendment. 

There are elements to help determine whether the objective test rendering statements non-testimonial is satisfied. To determine the element of "ongoing emergency" the following factors are relevant: the nature of the dispute; the scope of the potential harm to a victim; the threat to additional identifiable victims; the existence of a more generalized threat to the public; whether the suspect was armed as well as the type of weapon used by the suspect, if armed; and whether the suspect remained at large. 

Elements 2 and 3 for determining whether a statement might violate the Confrontation Clause if admitted at trial are more straightforward than element 1. Element 3 is self explanatory, and element 2 defines "unavailable" as it's defined elsewhere. Unavailable means that the declarant is in a specific situation preventing the declarant from testifying. Importantly, a witness might be unavailable in this context even if the witness is present in court. For example, a witness might rightfully refuse to testify based on the 5th Amendment's privilege against self incrimination.