Confrontation Clause

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted.

The fundamental policy reason we care about this is the Confrontation Clause and basic reliability.

Right.

If they aren't there, you can't cross-examine them.

Furthermore, the declarant must have made the statement while subjectively believing their death was imminent, and the statement must be regarding the cause or circumstances of their impending death.

Now, expert, walk the listener through the ultimate constitutional exam trap here, the Confrontation Clause.

Let's say a statement cleanly passes a hearsay exception.

It is a perfect textbook excited utterance.

If a victim calls nine one one while actively fleeing an armed shooter yelling, "He's shooting at me, he's wearing a red shirt," the primary purpose of that statement isn't to build a court case for next year.

It is to get the police to stop a threat right now.

Therefore, the nine one one tape is non-testimonial, it doesn't violate the Confrontation Clause, and it comes in as an excited utterance hearsay exception.

Let's finish evidence by differentiating privileges and covering the best evidence rule.

Two of the most heavily tested and, frankly, highly complex subjects you will ever face.

Specifically, we'll hit the labyrinth of hearsay and the Confrontation Clause.

Throughout this process, you will serve as the doctrinal guide, right?

I am.

But the vast majority of federal courts reject this.

A near miss can still qualify if its trustworthiness is independently established.

Transitioning from statutory rules, we must confront the constitutional overlay, the Confrontation Clause and the Crawford doctrine.

The Sixth Amendment guarantees the right to be confronted with witnesses.

Every single layer of the out-of-court onion must have its own doctrinal justification, or the entire statement is excluded.

Which brings us to the ultimate constitutional wall, Section seven, the Confrontation Clause and the monumental twenty twenty-four Supreme Court decision in Smith v. Arizona.

We have to establish a foundational rule that supersedes the entire evidence code.

So good, so good, so good.

Exactly.

Yeah.

They cannot introduce the report on its own without violating the Confrontation Clause.

Right.

Then impeachment.

And then you evaluate hearsay, and if you're in a criminal trial, you have to worry about the Confrontation Clause of the Constitution.

And finally, and this is where we are spending literally all our time today, you reach the final tollbooths, privilege, authentication, and the original writing rule.

Only then do you get a ruling of admissibility.

It guarantees the note inside the container is exactly the same as when you found it, but it doesn't tell you who typed the note, and it doesn't tell you if the note is telling the truth.

Now, anytime we talk about replacing a live human witness with a piece of paper in a criminal trial, we are walking into a constitutional minefield.

We have to address the Confrontation Clause of the Sixth Amendment.

The Confrontation Clause guarantees a criminal defendant the right to be confronted with the witnesses against him, and under the Supreme Court's Crawford and Melendez-Diaz line of cases, the prosecution absolutely cannot introduce testimonial out-of-court statements against a defendant unless the person who made the statement is unavailable and the defendant had a prior opportunity to cross-examine them.

Right.

Then the third phase is, is this source reliable? That's where you check witness foundation, opinion rules, impeachment, and then the massive hurdles of hearsay and the Constitution's Confrontation Clause.

Wow, okay.

And the final phase.

If you cause the declarant to be unavailable, you lose your right to object to their hearsay.

You essentially waive your evidentiary shields.

And significantly, if it's a criminal case, you lose your Sixth Amendment Confrontation Clause rights too."

That's the idea, but the Supreme Court drew a very sharp, very controversial line here in the landmark case of Giles v. California.

Right, not even close.

Because if it is a criminal case, step 11 requires a massive constitutional check under the Sixth Amendment Confrontation Clause.

Step 12 checks for privileges.

You know, did a spouse write that note?

Because every single layer is successfully cured, the entire multi-layered document is admissible.

But there is one final massive constitutional hurdle we have to address before we close, and this exists entirely outside the Federal Rules of Evidence.

The Sixth Amendment Confrontation Clause.

This is a vital flashing red light warning for anyone taking a criminal evidence exam.

Yeah, and from there you must rigorously analyze hearsay constraints.

Right, and if you find a hearsay exception in a criminal case, you then face the constitutional barrier of the Confrontation Clause.

And then finally, you clear privilege limitations, you authenticate the item, and, well, if it is a document, you satisfy the original writing rule.

It's a lot, but only after running that complete sequence do you actually reach an evidentiary ruling.

Step three, establish witness foundation.

That means competency, personal knowledge, lay versus expert opinion, and map out your impeachment attacks.

Step four, is there an out-of-court statement? If so, run your rigorous hearsay analysis, and if it's a criminal case, separately analyze the constitutional limits of the Confrontation Clause.

Step five, check for privileges, authenticate the exhibit, and apply the original writing rule.

Right.

Eleventh, Confrontation Clause issues.

Twelfth, privilege.

Thirteenth, authentication.