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The Confrontation Clause In The 21 Century

The Confrontation Clause in the 21st Century

WHAT IS THE CONFRONTATION CLAUSE

The 6th amendment of the United States Constitution gives the defendant the right to confront his accuser. This amendment is known as the “confrontation clause”. By far the most important right of the confrontation clause is the right to cross-examine witnesses. For this reason the confrontation clause is sometimes known as the right to cross-examine.

HOW DID THE CONFRONTATION CLAUSE CHANGE IN THE 21 CENTURY

In 2004 Justice Antonin Scalia changed the way courts interpret the confrontation clause in the land mark case of Crawford v. Washington. Crawford set the standard as to when a witness’s out of court statements are admissible without the person who made the statements testifying.

In Crawford the court held that testimonial statements could not be introduced against a defendant unless: 1) the witness was unavailable for trial; and 2) the defendant had a prior opportunity to cross-examine the witness.

WHAT’S THE “PRIMARY PURPOSE” TEST

In the case of Davis v. Washington the United States Supreme Court adopted the “primary purpose” standard for determining whether or not a statement is testimonial. This looks to whether or not the primary purpose of the statement is for the purpose of prosecution. If the primary purpose of the statement is prosecution then the statement is considered testimonial, and will not be admissible unless the defendant is given an opportunity to cross-examine the witness.

THE ONGOING EMERGENCY

In Bryant v. Michigan a person was shot. Before the person died he told the police the name of the person who shot him. At trial the victim’s statement came in about who shot him. The United States Supreme Court ruled the statements were made to meet the ongoing emergency of a dangerous man being out on the streets, and therefore the statements were not testimonial.