Confronting Confusion

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

U.S. Constitution, Sixth Amendment (emphasis added).

They are only eight words.  Eight words that mean a defendant has a right to see his accusers testify.  Clear.  Simple.  Concise.

And that is why you have lawyers.  We can help to confuse anything.

This is called the confrontation clause.  It's what stops prosecutors from placing witnesses on the stand to say what they heard on the streets.  Or from police officers just reading witness statements.  A defendant has a guaranteed right to have their attorney cross-examine witnesses.

What's that you say?  What about hearsay?  It's always allowed in evidence.  Hearsay is a person's statement outside of the witness stand that's being offered into evidence to prove a truth.  Most often this is in the form of what one person told another.  Hearsay is inadmissible in court because hearsay statements are generally unreliable and the confrontation clause guarantees the right to confront your accusers.
But there are so many exceptions to the hearsay rule that we don't have enough room to discuss them all.  Examples:

Admission - Defendant confesses to the police.
Dying declaration - Victim, thinking he was close to his last breath, points at Johnny and says "Johnny did it."
Statement of Intent - "Bill said he was going to the store."
Excited Utterance - immediately after a robbery a witness shouts at the police, "Sal pulled the gun on me.  He stole my stuff!"
Business Records - Documents made in the regular course of business, like phone or bank records.

These are all exceptions to the hearsay rule.  The number of exceptions began to overwhelm the rule.  That was why the Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004) ruled that any out of court statement (hearsay) that is testimonial is not admissible unless the declarant (person who made the statement) is available to testify at trial.  Whew.  So what does that mean?

Is a 911 call testimonial?  Is a certified lab report that says a substance is cocaine testimonial?  What if one analyst swabs a gun for DNA and then turns it over to another analyst to analyze the DNA?  Do we have to call both analysts?  What if it was sent to a private lab?  Do we have to call the driver of the truck who transported it?  The person who signed it into the lab?  The person who keeps the freezers at the correct temperature?

How far does testimonial go?  It's a trial.  Everything is testimonial., right?
Courts have struggled to determine what evidence is testimonial and what is non-testimonial.  The Supreme Court tried to help two years later in Davis v. Washington, 547 U.S. 813 (2006).  This case concerned whether a 911 call was testimonial.  The Davis Court said that it was not testimonial because it was not a police interrogation about past events, but a response to an emergency.  It was a non-testimonial excited utterance and thus admissible.

The main problem prosecutors find with the confrontation clause is when experts testify about pieces of evidence.  This is especially true in major cities where many hands will touch a piece of evidence and only one person will be called to testify about it.  Also, many communities send their materials to a private lab for testing.  The employees leave that lab for different jobs in different cities, or the labs don't have the same protocols as state sponsored labs.  It becomes financially onerous and sometimes impossible to discover each person.
The Supreme Court just upheld a rape conviction in Williams v. Illinois, In this case, the state sent out a piece of evidence for DNA analysis.  A private lab performed the analysis and sent it back.  Then a DNA analyst for the state compared the private lab results to the defendant's DNA and determined it was a match.  No one from the private lab was called to testify at trial.  The analyst testified about the private lab's report.

On it's face, it appears to violate the confrontation clause.  One witness is testifying about what another witness did.  But the Supreme Court decided this was fine and admissible.  It was not testimonial or hearsay because it was not being offered into evidence to prove it was true.  It was being offered into evidence to prove it was a match to the defendant.

Okay.  So, now we are all confused.  Especially you non-lawyers.  This is an overly simple analysis of an almost one hundred page decision, but we can all see the point.  For a document that is over two hundred years old, the Constitution is still evolving.  The rules of the game change every year.  Unfortunately, what might have been valid law at the time of trial may change by the time the Supreme Court hears the case years later.

Then, we do it all over again under the new laws.  My rule of thumb is to call all the witnesses in the chain, if I can find them.  If not, then I think of arguments why it doesn't violate the confrontation clause.