2007

United States v. Cabrera-Frattini, 65 M.J. 241 (the Confrontation Clause of the Sixth Amendment provides that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him). 

(before testimonial statements may be admitted, the Confrontation Clause requires that the accused have been afforded a prior opportunity to cross-examine the witness, and that the witness be unavailable). 

(in order for a witness to be unavailable for Sixth Amendment purposes, the government must first make a good faith effort to secure the witness’s presence at trial; the lengths to which the prosecution must go to produce a witness is determined under a reasonableness standard; the test for unavailability focuses on whether the witness is not present in court in spite of good-faith efforts by the government to locate and present the witness). 

(some of the factors that should be considered to determine the unavailability of a witness for Sixth Amendment purposes include the importance of the testimony, the amount of delay necessary to obtain the in-court testimony, the trustworthiness of the alternative to live testimony, the nature and extent of earlier cross-examination, the prompt administration of justice, and any special circumstances militating for or against delay; where the absence of the witness results from illness, a court should also consider the nature of the illness and the probable duration of the illness). 

United States v. Foerster, 65 M.J. 120 (the Sixth Amendment provides that in all criminal prosecutions, the accused shall enjoy the right to be confronted with witnesses against him; in the context of out-of-court statements, this right applies to  testimonial statements; only statements of this sort cause the declarant to be a witness within the meaning of the Confrontation Clause; although the Supreme Court has expressly declined to set forth an all encompassing definition of testimonial, the Court in Crawford v. Washington, 541 US 36 (2004), did state that whatever else the term testimonial 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; also, a possible definition of testimonial provided by the Court in Crawford focused on this circumstance:  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). 

(the Confrontation Clause of the Sixth Amendment should not be read as a wholesale nullification of the hearsay exceptions outlined in the Military Rules of Evidence). 

(for the purposes of the Confrontation Clause of the Sixth Amendment, relevant factors in distinguishing between testimonial and nontestimonial hearsay made under circumstances that would cause an objective witness to reasonably believe that the statement would be available for use at a later trial include:  (1) whether the statement was elicited by or made in response to law enforcement or prosecutorial inquiry; (2) whether the statement involved more than a routine and objective cataloging of unambiguous factual matters; and, (3) whether the primary purpose for making, or eliciting, the statements was the production of evidence with an eye toward trial; the final factor, whether the primary purpose was prosecutorial in nature, necessitates a contextual analysis). 

(an affidavit filled out by a victim of check fraud pursuant to internal bank procedures and without law enforcement involvement in the creation of the document was admissible as a non-testimonial business record that did not implicate the Sixth Amendment’s right of confrontation in light of Crawford v. Washington, 541 US 36 (2004) and Davis v. Washington, 126 SCt 2266 (2006), where the affidavit was made at the behest of bank and not law enforcement officials, the affidavit cataloged objective facts, and the primary purpose of the bank in eliciting the affidavit was to ensure that it would not be defrauded by an account holder; although the affidavit did contain language allowing the document to be turned over to law enforcement, that did not change the primary purpose for either eliciting or making the statement; nor is there authority to suggest that that fact, without more, transforms a nontestimonial business record into a testimonial statement; this affidavit was akin to other formal documents that courts have concluded are nontestimonial, such as military personnel records, urinalysis lab reports, and deportation warrants; the absence of evidence that a document was generated for the purpose of producing evidence at trial is important in determining whether it is nontestimonial). 

(every document labeled “affidavit” is not, for that reason alone, a testimonial statement that implicates the Confrontation Clause of the Sixth Amendment; rather, affidavits that would be presumptively testimonial refer to ex parte affidavits developed:  (1) by law enforcement or government officials, and (2) by private individuals acting in concert with or at the behest of law enforcement or government officials; other affidavits remain subject to a contextual analysis to determine whether they are, or are not, testimonial).  

United States v. Gardinier, 65 M.J. 30 (the Confrontation Clause of the Constitution bars the admission of testimonial statements of a witness who did not appear at trial unless the witness was unavailable to testify and the accused had a prior opportunity for cross-examination). 

United States v. Rankin, 64 M.J. 348 (the Confrontation Clause bars the admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination). 

(the relevant questions in distinguishing between testimonial and nontestimonial hearsay for the purposes of the Confrontation Clause include: (1) was the statement at issue elicited by or made in response to law enforcement or prosecutorial inquiry; (2) did the statement involve more than a routine and objective cataloging of unambiguous factual matters; and (3) was the primary purpose for making, or eliciting, the statements the production of evidence with an eye toward trial). 

(for nontestimonial statements, the Ohio v. Roberts requirement for particularized guarantees of trustworthiness governs the confrontation analysis; under the Roberts framework, nontestimonial hearsay is admissible if:  1) the statement falls within a firmly rooted hearsay exception, or 2) it bears other particularized guarantees of trustworthiness). 

United States v. Carruthers, 64 M.J. 340 (the Sixth Amendment guarantees an accused’s right to be confronted with the witnesses against him; an important function of this constitutionally protected right is to provide the defense an opportunity to expose the possible interests, motives, and biases of prosecution witnesses). 

(the exposure of a witness’s motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination; however, the Confrontation Clause of the Sixth Amendment does not prevent a trial judge from imposing any limits on a defense counsel’s inquiry into the potential bias of a prosecution witness; trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’s safety, or interrogation that is repetitive or only marginally relevant; the judge may restrict cross-examination when the probative value of the evidence sought would be substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the members).

(once the accused has been allowed to expose a witness’s motivation in testifying, it is of peripheral concern to the Sixth Amendment how much opportunity defense counsel gets to hammer that point home to the members).

2006

(an accused’s right under the Sixth Amendment to cross-examine witnesses is violated if the military judge precludes him from exploring an entire relevant area of cross-examination). 

United States v. Magyari, 63 M.J. 123 (the Confrontation Clause of the Sixth Amendment states that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him; under the Supreme Court’s ruling in Crawford v. Washington, in order for the prosecution to introduce testimonial out-of-court statements into evidence against an accused, the Confrontation Clause requires that the witness who made the statement be unavailable, and that the accused have had a prior opportunity to cross-examine the witness). 

(the focus of the Confrontation Clause is to protect criminal defendants from prosecutorial abuse and the involvement of government officials in the production of testimony with an eye towards trial).   

(if the declarant is unavailable to be cross-examined, the Confrontation Clause permits the admission of a hearsay statement in a criminal trial only if: (1) the statement falls within a firmly rooted hearsay exception, or (2) it bears other particularized guarantees of trustworthiness).

2005

United States v. Israel, 60 M.J. 485 (a defendant’s right under the Sixth Amendment to cross-examine witnesses is violated if the military judge precludes a defendant from exploring an entire relevant area of cross-examination).

United States v. Rhodes, 61 M.J. 445 (admission of co-actor’s prior statement implicating the accused in drug offenses did not violate the accused’s Sixth Amendment right to confrontation where co-actor took the stand, testified, and was subject to cross-examination, notwithstanding the fact that the co-actor now professed to have no memory of the accused’s involvement in the offenses).
 

(the Confrontation Clause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish; the opportunity for cross-examination is not denied when a witness testifies as to his current belief but is unable to recollect the reason for that belief; rather, it is sufficient that the accused has the opportunity to bring out such matters as the witness’s bias, his lack of care and attentiveness, his poor eyesight, and even (what is often a prime objective of cross-examination) the very fact that he has a bad memory; the weapons available to impugn the witness’s statement when memory loss is asserted will of course not always achieve success, but successful cross-examination is not the constitutional guarantee).

(when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraint at all on the use of his prior testimonial statements).

2003

United States v. Hall, 58 MJ 90 (the right to cross-examination is at the core of the confrontation clause).

United States v. McCollum, 58 MJ 323 (the Confrontation Clause of the Sixth Amendment guarantees that in all prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him; the Supreme Court has explained that this right contains not only a right to a personal examination, but also (1) insures that the witness will give his statements under oath - thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the greatest legal engine ever invented for discovery of the truth; and (3) permits the jury that is to decide the defendant’s fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility; although each of these protections serves to ensure the reliability of the evidence against a criminal defendant, the Court has stressed that an accused’s right to physical, face-to-face confrontation with witnesses against him forms the core of the Confrontation Clause).

(despite the Confrontation Clause’s emphasis on physical, face-to-face confrontation, it is not an absolute right; a defendant’s right to confront accusatory witnesses may be satisfied absent physical, face-to-face confrontation at trial 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; therefore, a witness may testify out of an accused’s presence only where the trial court finds (1) that there is an important public interest that will be served by denying physical confrontation, (2) that such denial is necessary to further that interest, and (3) that other measures will ensure the reliability of the testimony).

(the Sixth Amendment does not require a military judge, as a matter of course, to interview or observe a child witness prior to allowing the child to testify outside of an accused’s presence).

(the military judge did not violate appellant’s Sixth Amendment right to confront a witness against him by allowing a child witness to testify outside of appellant's presence where the military judge's findings supported the conclusion that the witness would have been unable to testify in appellant’s presence under M.R.E. 611(d)(3)(A) because of the witness's fear of appellant (and under M.R.E. 611(d)(3)(B) because of the trauma caused by his presence) and where the procedure implemented by the military judge properly protected other aspects of appellant’s right to confrontation; the military judge ensured that appellant was able to communicate with his counsel at all times during the witness's testimony; the military judge also required the witness to testify in court, under oath, and in the presence of the fact-finder; and finally, appellant’s counsel was able to cross-examine the witness; these protections were sufficient to ensure the reliability of the witness's testimony despite appellant’s absence).

1999

United States v. Anderson, 51 MJ 145 (Confrontation Clause reflects the fundamental right of confrontation and cross-examination, an essential and fundamental requirement for a fair trial).

(Confrontation Clause reflects a preference for face-to-face confrontation at trial, normally requiring the defendant’s presence and ability to see the accusatory witness).

(while the right to confrontation is fundamental, it is not absolute, and may be balanced against the government’s strong interest in law enforcement, the state’s compelling interest in the physical and psychological well-being of minor victims, and the societal interest in accurate factfinding; thus, the right to confrontation may yield to an important public policy when the reliability of the testimony at issue is otherwise assured).

(to support decision to limit the right to face-to-face confrontation between an accused and a child victim, the military judge must make a finding of necessity, i.e., that there is a likelihood that the child will suffer at least moderate emotional and mental harm if required to testify in the accused’s presence).

(military judge’s finding of necessity in support of a decision to limit the right to face-to-face confrontation between an accused and a child victim was supported by the record where:  (1) expert’s opinion provided a sound, adequate basis upon which the military judge considered whether each child victim could testify and under what circumstances each child could communicate; and (2) the military judge personally observed that child could not even take the witness stand).