The Confrontation Clause of the United States Constitution protects the right of a criminal defendant to be confronted by his or her accusers in Court and to cross-examine any testimony that they may offer. The admission of hearsay (an out-of-court statement) – even if admissible under an exception to the rule against hearsay – can be in direct conflict with the right of Confrontation.
Since 2004, the United States Supreme Court has resolved this potential conflict by examining the nature of a statement and the circumstances under which a statement was made to determine whether the statement is “testimonial” or “non-testimonial.” If a statement is “testimonial,” the Confrontation Clause prohibits its use at trial unless (1) the declarant testifies at trial or (2) the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant. If the statement is “non-testimonial,” then its admission at trial does not violate the Confrontation Clause.
Generally speaking, “testimonial” hearsay is a statement that:
- looks like the kind of testimony that would be offered at trial in aid of prosecution;
- is made when the circumstances objectively indicate that there is no ongoing emergency; and
- the primary purpose of the interrogation is to establish or prove past events potentially relevant to a later criminal prosecution.
Examples of “testimonial” hearsay include depositions, affidavits, police lab reports and written or oral statements taken by law enforcement that describe a crime and identify the party or parties involved.
On the other hand, “non-testimonial” hearsay is a statement that:
- is made primarily for the purpose of assisting police to meet an ongoing emergency; or
- was made primarily for a purpose other than discovering, establishing or proving past events potentially relevant to later criminal prosecution.
Examples of “non-testimonial” hearsay include 911 calls, statements made to police officers responding to an emergency and statements made by a victim to a medical practitioner when receiving emergency medical treatment.
Backed by decades of combined experience and hundreds of successful litigations, Levin & Javie knows what it takes to fight and win. We can examine the evidence in your case and prepare a strategic defense to counter any sort of hearsay that the opposition may attempt to use against you.
We want to help you protect your rights and defend your name. Call us at (267) 497-8889 or contact us online to get started.