FIRST PRINCIPLESConstitutional Matters: Confrontation


2012 (September Term)

United States v. Porter, 72 M.J. 335 (given that the error in the admission of testimonial evidence in violation of the confrontation clause is constitutional, the question is not whether the evidence was legally sufficient without the testimonial evidence, but whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction; this determination is made on the basis of the entire record). 

United States v. Squire, 72 M.J. 285 (the Confrontation Clause bars admission of the testimonial statements of a witness who did not appear at trial unless the witness was unavailable to testify and the defendant had a prior opportunity for cross-examination). 

(a comprehensive definition of testimonial statements under the Confrontation Clause has not been articulated, but the analysis is fact specific, meaning that it is contextual, rather than subject to mathematical application of bright line thresholds; the goal is an objective look at the totality of the circumstances surrounding the statement; factors used in determining whether a given statement is testimonial include whether: (1) the statement was elicited by or made in response to law enforcement or prosecutorial inquiry, (2) the statement involved more than a routine and objective cataloging of unambiguous factual matters, and (3) the primary purpose for making, or eliciting, the statement was the production of evidence with an eye toward trial). 

(statements made by a female eight-year-old victim after an alleged sexual assault to a physician when he took her medical history prior to performing a sexual assault examination were not testimonial for Confrontation Clause purposes where the physician was primarily acting for the purpose of providing medical treatment; his practice was always to take a medical history before performing a physical exam, and the history was ultimately medically significant to his conclusion that there had been physical penetration of the vagina; even though the physician was aware of the possible law enforcement consequences of the exam and he was a mandatory reporter of cases involving child sexual assault victims under state law and completed a state-mandated form while conducting the exam, he was not acting in a law enforcement capacity; here, the connection to law enforcement was the general requirement that the physician, as a mandatory reporter under state law, must report and document possible sexual abuse of children after conducting a forensic examination; this general requirement, which broadly covers health care professionals, employees of public and private schools, child care providers, and providers of recreational and sports activities, was not alone sufficient to establish that the physician was acting in a law enforcement capacity). 

(statements made by a female eight-year-old victim after an alleged sexual assault to an emergency room physician when the physician took her medical history were not testimonial for Confrontation Clause purposes where the primary purpose of the statements was to facilitate medical treatment for a possible sexual assault; the victim’s mother brought the victim to the emergency room on her own volition, without having been advised by or even seeking to contact law enforcement personnel, the emergency room physician did not conduct a forensic examination, and in taking the patient’s history, the physician asked questions to the victim that were narrow in scope, fact oriented, and limited to addressing the victim’s emergency medical condition and its causes). 

United States v. Jasper, 72 M.J. 276 (while trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on cross-examination, an accused’s Confrontation Clause rights are violated when a reasonable jury might have received a significantly different impression of the witness’s credibility had defense counsel been permitted to pursue his proposed line of cross-examination; whether sufficient cross-examination has been permitted depends on whether the witness’s motivation for testifying has already been exposed and further inquiry would be marginally relevant at best and potentially misleading). 

(a military judge’s erroneous ruling  that the alleged sexual abuse victim and her mother had not waived the clergy privilege of MRE 503, a privilege that protected the alleged victim’s statement to her pastor that she had made up her sexual abuse allegations against appellant to get attention, violated appellant’s rights to confrontation and due process, given that (1) the alleged victim’s testimony was critical to the government’s case, (2) the erroneous exclusion of the alleged victim’s exculpatory statements prevented appellant from exposing the alleged nefarious motivation behind her allegations and testimony, and (3) appellant’s theory of the case was that both his wife and the alleged victim were lying; the military judge’s ruling prevented appellant from using the alleged victim’s statements to impeach her credibility through cross-examination or otherwise; in addition, the military judge’s error prevented appellant from presenting the alleged victim’s exculpatory statements to the panel through the pastor’s direct testimony, depriving him of relevant, material, and vital testimony and evidence). 

United States v. Tearman, 72 M.J. 54 (a statement is testimonial if made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial; asked another way, would it be reasonably foreseeable to an objective person that the purpose of any individual statement in a drug testing report is evidentiary; to make this determination, fine distinctions based on the impetus behind the testing and the knowledge of those conducting laboratory tests at different points in time are treated as relevant considerations, but not as dispositive factors; moreover, the formality of a statement is a factor to be considered when determining whether the statement is testimonial for the purposes of the Confrontation Clause).

(under any of the various formulations of testimonial statements, neither the chain-of-custody documents nor the internal review worksheets at issue in the drug testing report were testimonial for purposes of the Confrontation Clause; the process of creating the challenged statements was initiated without any external request, before appellant was charged, and before all, or in the case of the chain-of-custody documents, any testing was complete; the entries and notations contained in the documents were made contemporaneously with a change in custody of the sample or a step in the testing process, pursuant to the regular practice of the drug screening lab and in the regular course of conducting its business; thus, when the laboratory technicians signed and annotated the internal chain-of-custody and internal review documents, they did so under circumstances which would lead an objective witness reasonably to believe that they did so to maintain internal control, not to create evidence for use at a later trial; in addition, none of the statements at issue summarize or certify additional substantive information; instead, the signatures and annotations in the chain-of-custody documents and internal review worksheets track the progress of the specimen bottle from the command to the drug screening lab and from person-to-person at the drug screening lab, and note the progress of the sample through the testing processes; finally, the documents at issue lack any indicia of formality or solemnity that, if present, would suggest an evidentiary purpose; instead, the statements are comprised of nothing more than signatures, stamped names, dates, and minimal notations with no certification, swearing, witnessing, or other attestation; based on all of the above, none of the statements contained in the chain-of-custody documents and the internal review worksheets at issue were testimonial and that the military judge did not abuse his discretion in admitting them as business records under MRE 803(6)). 

(relief for Confrontation Clause errors will be granted only where they are harmless beyond a reasonable doubt).  

(to determine whether a Confrontation Clause error is harmless beyond a reasonable doubt, an appellate court balances factors such as: (1) the importance of the unconfronted testimony in the prosecution’s case, (2) whether that testimony was cumulative, (3) the existence of corroborating evidence, (4) the extent of confrontation permitted, and (5) the strength of the prosecution’s case; this list of factors is not exhaustive, and the determination is made on the basis of the entire record; to conclude that a Confrontation Clause error was harmless beyond a reasonable doubt, an appellate court must be convinced that the testimonial hearsay was unimportant in light of everything else the court members considered on the issue in question). 

United States v. Vazquez, 72 M.J. 13 (there is a presumption against waiver of the fullest expression of rights under the Confrontation Clause). 

(the Confrontation Clause guarantees the accused a face-to-face meeting with witnesses appearing before the trier of fact). 

(the central concern of the Confrontation Clause is to ensure the reliability of the evidence against an accused by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact). 

(as applied in this case, Article 29(b), UCMJ, sufficiently satisfied the central concern of the Confrontation Clause, where each witness testified under oath and in the presence of the accused and four of the final panel members, where the accused had the opportunity to cross-examine each witness, and where the verbatim transcript read to the two new panel members was subject to rigorous testing in the context of an adversary proceeding and would be admissible under the former testimony hearsay exception if the witnesses were found to be unavailable in a subsequent proceeding, even over defense objection; while the importance of the trier of fact observing witness demeanor cannot be discounted to the central concerns of the Confrontation Clause, absent a defense objection, or in the event of witness unavailability, the presentation of written witness testimony, without any of the members seeing the witness’s demeanor, is both an accepted practice and constitutionally unremarkable; stipulations of expected testimony, Article 32, UCMJ, testimony, and deposition transcripts are routinely presented to members and, absent objection, pose no dangers to the integrity of the courts-martial or the fairness of the members; as such, the accused has failed to show that the factors militating in favor of his interest were so extraordinarily weighty as to overcome the balance struck by Congress, or that his rights under the Confrontation Clause were violated). 

2010 (September Term)

United States v. Ellerbrock, 70 M.J. 314 (the exception for constitutionally required evidence in MRE 412(b)(1)(C) includes the accused’s Sixth Amendment right to confrontation; an accused has a constitutional right to be confronted by the witnesses against him, and that right necessarily includes the right to cross-examine those witnesses; in particular, the right to cross-examination has traditionally included the right to impeach, i.e., discredit the witness). 

United States v. Sweeney, 70 M.J. 296 (in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him). 

(in determining whether statements in a drug testing report are testimonial under the Confrontation Clause, the focus has to be on the purpose of the statements in the report itself, rather than the initial purpose for the urine being collected and sent to the laboratory for testing; the relevant question is thus whether the statement is made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial; asked another way, would it be reasonably foreseeable to an objective person that the purpose of any individual statement in a drug testing report is evidentiary). 

United States v. Gaddis, 70 M.J. 248 (an accused has a Sixth Amendment right to confront the witnesses against him; it is well settled that the exposure of a witness’s motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination; a limitation on an accused’s presentation of evidence related to issues such as bias or motive to fabricate may violate an accused’s right to confront witnesses; however, trial judges retain wide latitude 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).   

(once an 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 jury). 

United States v. Sullivan, 70 M.J. 110 (the Confrontation Clause preserves the right of an accused to be confronted with the witnesses against him; this right includes the right to cross-examine witnesses, including on issues of bias and credibility). 

United States v. Savala, 70 M.J. 70 (the Sixth Amendment right of confrontation includes the constitutionally protected right of cross-examination; the right of cross-examination includes the opportunity to inquire into otherwise inadmissible matters if the prosecution, through its presentation, opens the door to consideration of such matters; the right of confrontation is subject to limitations, including the authority of the court to restrict the scope of cross-examination to avoid problems such as harassment, prejudice, confusion of the issues, or repetitive interrogation).

United States v. Cavitt, 69 M.J. 413 (the Confrontation Clause is not satisfied by reliability - it requires confrontation of the declarant of testimonial hearsay).

 

(a surrogate expert witnessís testimony regarding drug test results violated the Confrontation Clause of the Sixth Amendment in a prosecution for wrongful use of marijuana, where the testimony drew attention to and repeated portions of the testimonial hearsay contained on the drug test report cover memorandum).

 

United States v. Dollar, 69 M.J. 411 (the preadmission of two drug testing report cover memoranda through a surrogate expert witness to prove a charge of wrongful use of cocaine violated the Confrontation Clause of the Sixth Amendment where the declarants who made statements on the cover memoranda did not testify). 

 

United States v. Blazier, 69 M.J. 218 (the signed, certified cover memoranda on a drug testing report - prepared at the request of the government for use at trial, and which summarized the entirety of the laboratory analyses in the manner that most directly bore witness against appellant - are testimonial under current Supreme Court precedent).   

 

(the Sixth Amendment provides that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him; accordingly, no testimonial hearsay may be admitted against a criminal defendant unless (1) the witness is unavailable, and (2) the witness was subject to prior cross-examination).  

 

(where testimonial hearsay is admitted, the Confrontation Clause is satisfied only if the declarant of that hearsay is either (1) subject to cross-examination at trial, or (2) unavailable and subject to previous cross-examination).

 

(an expert may, consistent with the Confrontation Clause and the rules of evidence, (1) rely on, repeat, or interpret admissible and nonhearsay machine-generated printouts of machine-generated data, and/or (2) rely on, but not repeat, testimonial hearsay that is otherwise an appropriate basis for an expert opinion, so long as the expert opinion arrived at is the expertís own; however, the Confrontation Clause may not be circumvented by an expertís repetition of otherwise inadmissible testimonial hearsay of another). 

 

(the ďwitnessĒ that the accused has the right to confront is the declarant; the right of confrontation is not satisfied by confrontation of a surrogate for the declarant; and ďreliabilityĒ is no substitute for this right of confrontation; while ďreliabilityĒ is the end, the right of confrontation is the means, and it is the means (rather than the end) that the Sixth Amendment insists upon; substitute means of ensuring reliability do not satisfy the Confrontation Clause, no matter how efficacious they might be; the right of confrontation is the right to confront and cross-examine the actual witness who made the testimonial statement). 

 

(it is well-settled that under both the Confrontation Clause and the rules of evidence, machine-generated data and printouts are not statements and thus not hearsay - machines are not declarants - and such data is therefore not testimonial; machine-generated data and printouts such as those in this case are distinguishable from human statements, as they involve so little intervention by humans in their generation as to leave no doubt they are wholly machine-generated for all practical purposes; because machine-generated printouts of machine-generated data are not hearsay, expert witnesses may rely on them, subject only to the rules of evidence generally, and MRE 702 and MRE 703 in particular). 

 

(the fact that the government may, consistent with the rules of evidence and the Confrontation Clause, introduce machine-generated data and expert testimony relying on the work of others does not preclude an accused from seeking to call as witnesses those who operated the machines or performed the work being relied upon to test, among other things, the accuracy, validity, and reliability of those machines and tests; as the Compulsory Process Clause of the Sixth Amendment, Article 46, UCMJ, 10 USC ß 846, and RCM 703(a) make clear, a defendant has the right to the compulsory process of witnesses who can provide relevant and necessary evidence in their defense; in other words, a live witness not required by the Confrontation Clause because the government admitted no testimonial hearsay may nonetheless be called by the defense and attendance compelled upon a showing of relevancy and necessity). 

 

(neither the rules of evidence nor the Confrontation Clause permit an expert witness to act as a conduit for repeating testimonial hearsay; an expert witness may review and rely upon inadmissible hearsay in forming independent conclusions, but he may not circumvent either the rules of evidence or the Sixth Amendment by repeating the substance of the hearsay). 

 

(although the expert witness in this case may well have been able to proffer a proper expert opinion based on machine-generated data and calibration charts, his knowledge, education, and experience and his review of the drug testing reports alone, both the drug testing reports and the expert witnessís testimony contained a mix of inadmissible and admissible evidence; specifically, the cover memoranda were inadmissible under the Confrontation Clause, and the expert witnessís testimony conveying the statements contained in those cover memoranda - including those concerning what tests were conducted, what substances were detected, and the nanogram levels of each substance detected - were inadmissible under both the Confrontation Clause and MRE 703, while the machine-generated printouts and data were not hearsay at all and could properly be admitted into evidence and serve as the basis for the expert witnessís conclusions). 

 

(statements prepared in anticipation of litigation are not business records and, even if a document might otherwise be a business record, if it is testimonial hearsay, its admission violates the Confrontation Clause).

 

(for most constitutional errors at trial, an appellate court applies the harmless error test set forth in Chapman v. California, 386 US 18 (1967), to determine whether the error is harmless beyond a reasonable doubt; evidence admitted in violation of the Confrontation Clause of the Sixth Amendment is subject to that standard; in assessing harmlessness in the constitutional context, the question is not whether the evidence is legally sufficient to uphold a conviction without the erroneously admitted evidence; rather, the question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction; this determination is made on the basis of the entire record, and its resolution will vary depending on the facts and particulars of the individual case). 


2009 (September Term)

United States v. Smith, 68 M.J. 445 (the Sixth Amendment provides that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him; the right to confrontation includes the right of a military accused to cross-examine adverse witnesses).

 

(uncovering and presenting to court members a witnessís motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination; through cross-examination, an accused can expose to the members the facts from which they could appropriately draw inferences relating to the reliability of the witness).  


United States v. Blazier, 68 M.J. 439 (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; this gives accuseds the right to question not only witnesses providing oral, in-court testimony, but also the declarant of any hearsay that is testimonial; before such testimonial hearsay 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).

2008 (September Term)

United States v. Collier, 67 M.J. 347 (the exposure of a witnessís motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination). 

 

(a limitation on an accusedís presentation of bias evidence may be a violation of the Sixth Amendment right to confront witnesses; the question is whether a reasonable jury might have received a significantly different impression of the witnessís credibility had defense counsel been permitted to pursue his proposed line of cross-examination). 

 
(the right of cross-examination is not unlimited; the accusedís confrontation right does not give, for example, free license to cross-examine a witness to such an extent as would hammer the point home to the jury).

 
(whether sufficient cross-examination has been permitted depends on whether the witnessís motivation for testifying has already been exposed and further inquiry would be marginally relevant at best and potentially misleading). 

 

(the military judge erred in prohibiting appellantís defense counsel from cross-examining the main government witness about an alleged homosexual romantic relationship between the witness and appellant and from introducing extrinsic evidence of such a relationship; the military judgeís ruling prevented appellantís counsel from fully exploring this government witnessís bias and motive to misrepresent the truth and precluded appellant from presenting her theory of the case; while the military judge did permit cross-examination about a close friendship between the two, appellant wanted to show that their relationship went beyond friendship, to a sexual and romantic relationship that lasted four months, during which time they lived together, and that the witness framed appellant for larceny as a result of their romantic relationship ending badly; it is intuitively obvious that there is a qualitative difference between the breakup of a friendship and a badly ended romantic relationship, whether that romantic relationship was sexual or not; the romantic nature of a relationship has a special relevance to motivation such that allowing additional cross-examination in that area is not a mere opportunity to hammer the point home to the members; if the members had been given evidence of a sexual and romantic relationship between the witness and appellant, they might have had a significantly different impression of the witnessís credibility; as such, the military judgeís ruling was a violation of appellantís Sixth Amendment right to confront a witness against her).


(in the case of limitation of cross-examination, the correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt; the burden is on the government to show that there is no reasonable possibility that the error contributed to the contested findings of guilty; an error has not contributed to the verdict when it was unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record; to find that the error warrants relief, an appellate court need not conclude that appellantís defense would have succeeded; instead the inquiry should focus on whether the military judgeís ruling essentially deprived appellant of her best defense that may have tipped the credibility balance in appellantís favor; in this regard, an appellate court balances the importance of the witnessís testimony in the prosecutionís case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecutionís case). 


(in a larceny and obstruction of justice case, the violation of appellantís Sixth Amendment right to confrontation occurring when the military judge prohibited appellant from cross-examining the main government witness about that witnessís homosexual romantic relationship with appellant was not harmless beyond a reasonable doubt; the theory offered to defend against the larceny charge was that this witness framed appellant for the theft of the tools by buying and etching tools to look like they came from the squadron, and the theory offered to defend against the obstruction of justice charge was that appellant slashed the witnessís tire out of anger over the breakup, rather than with the intent to influence testimony; however, due to the military judgeís limitation on cross-examination of the witness, the defense counsel was able to offer only the end of a friendship as the motivation for the framing and tire slashing, as opposed to the end of a romantic or sexual relationship; this error was not unimportant in relation to everything else the factfinders considered, and thus, there was a reasonable possibility it contributed to the verdict). 


United States v. Clayton, 67 M.J. 283 (the Sixth Amendment provides that in all criminal prosecutions, the accused shall enjoy the right to be confronted with witnesses against him; this right applies to testimonial statements made out of court because the declarant is a witness within the meaning of the Sixth Amendment, and thus the accused must be afforded the right to cross-examine that witness). 

 

(by admitting a German civilian police report and its English translation into evidence, the military judge committed constitutional error by infringing on appellantís Sixth Amendment right to confront the non-testifying witnesses whose statements were incorporated in the report).

 

United States v. Crudup, 67 M.J. 92 (the denial of an accusedís Sixth Amendment right to cross-examine a witness may be tested for harmlessness).

 

(a Sixth Amendment error in admitting an out-of-court statement that appellantís wife made to the military police regarding appellantís assault on her and their infant son was harmless beyond a reasonable doubt, where the statement was unimportant in relation to everything else the military judge considered on the issue, the statement was cumulative, other evidence corroborated the statement, the defense was permitted to impeach the wifeís credibility with a prior conviction for fraud, and the governmentís case was quite strong, including eyewitness testimony, corroborating physical injuries, and appellantís partial confession; the statement did not contribute to the verdict as it was unimportant in relation to the other evidence of record). 


2008 (Transition)
 

United States v. Harcrow, 66 M.J. 154 (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 Crawford v. Washington, the Confrontation Clause bars the admission of testimonial statements of a witness who did not appear at trial unless the witness was unavailable to testify and the defendant had a prior opportunity for cross-examination; Crawford set forth various formulations of the core class of testimonial statements without articulating a comprehensive definition of ďtestimonial;Ē these include: (1) ex parte in-court testimony; (2) extrajudicial statements contained in formalized trial materials; and (3) 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; these formulations, however, do not constitute an exhaustive list of testimonial statements, and serve as a useful baseline to begin analysis of the testimonial quality of other statements in question). 


United States v. Pack, 65 M.J. 381 (the Confrontation Clause of the Sixth Amendment provides, among other things, that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him). 

 

(one-way closed-circuit testimony from a child witness is admissible and consonant with the requirements of the Confrontation Clause when: (1) the court determines that it is necessary to protect the welfare of the particular child witness; (2) the court finds that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant; and (3) the trial court finds that the emotional distress suffered by the child witness in the presence of the defendant is more than de minimis).

 

(although face-to-face confrontation forms the core of the values furthered by the Confrontation Clause, appellate courts have nevertheless recognized that it is not the sine qua non of the confrontation right and rejected a literal reading of the Confrontation Clause in favor of a preference for face-to-face confrontation at trial, a preference that must occasionally give way to considerations of public policy and the necessities of the case).

 

(the Confrontation Clause requires cross-examination and unavailability before testimonial hearsay can be admitted into evidence). 

 

(the case of Maryland v. Craig, 497 US 836 (1990), continues to control the questions whether, when, and how, remote testimony by a child witness in a criminal trial is constitutional; the case of Crawford v. Washington, 541 US 36 (2004), did not so undermine the reasoning in Craig that an appellate court is free to disregard Craig and hold that anything short of face-to-face confrontation at trial violates the Sixth Amendment).

 

(appellant was not denied his Sixth Amendment right to confront his accuser when the military judge permitted the child victim to testify from a remote location via a one-way closed-circuit television, where the military judge found that there was a need to protect the child witness, the child would be traumatized by the presence of the accused, and the emotional distress suffered by the child would be more than de minimis).

 

United States v. Othuru, 65 M.J. 375 (the denial of the opportunity to cross-examine an adverse witness does not fit within the limited category of constitutional errors that are deemed prejudicial in every case; as the error in this case involves appellantís Sixth Amendment right to cross-examine the witnesses, an appellate court may test this Confrontation Clause error for its effect upon the trial to determine whether the error was harmless beyond a reasonable doubt).

 

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 witnessís 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 Amendmentís 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 ďaffidavitĒ 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 accusedís 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 witnessís 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 counselís 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 witnessís 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 witnessís 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

 

United States v. Moss, 63 M.J. 233 (when the military judge excludes evidence of bias, the exclusion raises issues regarding an accusedís Sixth Amendment right to confrontation). 

 

(an accusedís 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 Courtís 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 defendantís 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-actorís prior statement implicating the accused in drug offenses did not violate the accusedís 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 accusedís 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 witnessís 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 witnessís 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 defendantís 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 accusedís right to physical, face-to-face confrontation with witnesses against him forms the core of the Confrontation Clause).

(despite the Confrontation Clauseís emphasis on physical, face-to-face confrontation, it is not an absolute right; a defendantís 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 accusedís 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 accusedís presence).

(the military judge did not violate appellantís 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 appellantís 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 appellantís 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, appellantís counsel was able to cross-examine the witness; these protections were sufficient to ensure the reliability of the witness's testimony despite appellantís 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 defendantís 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 governmentís strong interest in law enforcement, the stateís 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 accusedís presence).

(military judgeís 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) expertís 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).

(military judge committed no error materially prejudicial to appellantís substantial rights, and appellant was not improperly denied his right to face-to-face confrontation where:  (1) the military judge made a case-specific finding of necessity; (2) the finding of necessity was supported by the record; (3) the impact on the two child witnesses would have been more than de minimis if they were compelled to face the accused; (4) the arrangement of screens and televisions was such that all parties could see each child testify; and (5) the defense was able to conduct full cross-examination while maintaining communications amongst themselves with the accused).


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