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The Confrontation Clause and the Trial or Appellate Attorney

Posted by Jason Rapp | Dec 09, 2020 | 0 Comments

The following is a summary of the relevant case law in the Sixth Circuit as it pertains to the Confrontation Clause, with the focus being on police officer testimony in a criminal case, and appeals that are triggered by such an argument.  To begin, and to frame the analysis, it is helpful to understand the appropriate standard of review, so that is where I will start. 

Generally, evidentiary rulings, such as the admission of hearsay testimony, are reviewed under an abuse of discretion standard.  United States v. Pugh, 405 F.3d 390, 397 (6th Cir. 2005).  “‘A district court abuses its discretion when it applies the incorrect legal standard, misapplies the correct legal standard, or relies upon clearly erroneous findings of fact.'”  Id. (citing Schenck v. City of Houston, 114 F.3d 590, 593 (6th Cir. 1997).  The appellate court must be “firmly convinced that a mistake has been made.  Id. (citing United States v. Kingsley, 241 F.2d 828, 835 n. 12 (6th Cir. 2001).  However, when reviewing an alleged Confrontation Clause violation, the appropriate standard of review is de novoUnited States v. Johnson, 440 F.3d 832, 842-843 (6th Cir. 2006). 

If an objection is absent, the appellate court will review for plain error and if that error “affects substantial rights, it may be considered even if never “brought to the court's attention.”  United States v. Cromer, 389 F.3d 662, 672 (6th Cir. 2004)(citing Fed.R.Crim.P.52(b); United States v. Koeberlein, 161 F.3d 946, 949 (6th Cir. 1998)).  This applies in circumstances when the issue is a “constitutional error.”  Id. (citing United States v. Jones, 108 F.3d 668 676 (6th Cir. 1997)).  Additionally, “[p]ursuant to plain error review, an appellate court may only correct an error not raised at trial if there is ‘(1) ‘error,' (2) that is ‘plain,' and (3) that ‘affect[s] substantial rights.'”  Cromer at 389 F.3d 662, 672 (6th Cir. 2004)(citing Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct.1544, 137 L.Ed.2d 718 (1997)(additional citations omitted)).  “‘If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if(4) the error ‘seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.'” Cromer at 389 F.3d 662, 672 (6th Cir. 2004).

Hearsay is defined by Federal Rule of Evidence Rule 801(c) as follows:

     (c) Hearsay. “Hearsay” means a statement that:

          (1) the declarant does not make while testifying at the current trial or hearing; and

          (2) a party offers in evidence to prove the truth of the matter asserted in the statement.

FRE Rule 801(c).  Hearsay, by its very nature, implicates the protections of the Sixth Amendment to the United States Constitution. 

An accused has the right to, “be confronted with the witnesses against him.” U.S. Const. amend. VI.  In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Supreme Court, “introduced a fundamental re-conception of the Confrontation Clause.”  United States v. Cromer, 389 F.3d 662, 671 (6th Cir. 2004)(citing Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)).  While analyzing Crawford, this Court observed that the Supreme Court:

[R]eaffirmed the importance of the confrontation right and introduced a distinction between testimonial and nontestimonial statements for Confrontation Clause purposes: “Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment's protection to the vagaries of the rules of evidence, much less to amorphous notions of ‘reliability.'”

Id.(citing Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)).  Ultimately, the Supreme Court held that, “testimonial, out-of-court statements offered against the accused to establish the truth of the matter asserted may only be admitted where the declarant is unavailable and where the defendant has had a prior opportunity to cross-examine the declarant.”  Id.(citing Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)).  

In undertaking such an analysis, a court must determine if the statement is testimonial in nature.  Importantly, “‘A statement made knowingly to the authorities that describes criminal activity is almost always testimonial.'” United States v. Cromer, 389 F.3d 662, 675 (6th Cir. 2004)(citing Richard D. Friedman, Confrontation: The Search for Basic Principles, 86 Geo. L.J. 1011, 1042 (1998)). 

          The court in Cromer further analyzed that:

Tips provided by confidential informants are knowingly and purposely made to authorities, accuse someone of a crime, and often are used against the accused at trial. The very fact that the informant is confidential-i.e.,that not even his identity is disclosed to the defendant-heightens the dangers involved in allowing a declarant to bear testimony without confrontation. The allowance of anonymous accusations of crime without any opportunity for cross-examination would make a mockery of the Confrontation Clause.   

Cromer at 389 F.3d 662, 675 (6th Cir. 2004).

A broad definition of “testimonial,” when analyzing a Confrontation Clause issue is vital as it will cover areas of both formal and informal discussions with police so as to avoid a manipulation of the system and an obliteration of the Confrontation Clause.  Crawford at 389 F.3d 662, 674 (6th Cir. 2004).  Going further, the court noted:

Indeed, the danger to a defendant might well be greater if the statement introduced at trial, without a right of confrontation, is a statement volunteered to police rather than a statement elicited through formalized police interrogation. One can imagine the temptation that someone who bears a grudge might have to volunteer to police, truthfully or not, information of the commission of a crime, especially when that person is assured he will not be subject to confrontation. Professor Friedman's concern becomes especially meaningful in such a context. If the judicial system only requires cross-examination when someone has formally served as a witness against a defendant, then witnesses and those who deal with them will have every incentive to ensure that testimony is given informally. The proper inquiry, then, is whether the declarant intends to bear testimony against the accused. That intent, in turn, may be determined by querying whether a reasonable person in the declarant's position would anticipate his statement being used against the accused in investigating and prosecuting the crime.

Crawford at 389 F.3d 662, 675 (6th Cir. 2004).  It is clear that “any reasonable person” would anticipate that their statements, identifying individuals engaged in criminal activity, would be used against those individuals for investigatory and/or prosecutorial purposes.  United States v. Pugh, 405 F.3d 390, 399 (6th Cir. 2005)(emphasis added). 

It is immaterial if a defendant “opens the door” to the objected-to testimony as:

We have held, in light of Crawford, that “the mere fact that [a defendant] may have opened the door to the testimonial, out-of-court statement that violated his confrontation right is not sufficient to erase that violation.” We noted that “a defendant only forfeits his confrontation right if his own wrongful conduct is responsible for his inability to confront the witness.” (providing the example of a witness who is “unavailable to testify because defendant has killed or intimidated her”).

United States v. Pugh, 405 F.3d 390, 400 (6th Cir. 2005)(citing United States v. Cromer, 389 F.3d 662 (6th Cir. 2004)). 

After determining whether the statement is testimonial in nature, a court must determine if the error was harmless, even in a Confrontation Clause analysis.  Pugh at 405 F.3d 390, 400 (6th Cir. 2005).  “‘In determining whether an error is harmless, the reviewing court ‘must take account of what the error meant to [the jury], not singled out and standing alone, but in relation to all else that happened.'”  Pugh at 405 F.3d 390, 400-01 (6th Cir. 2005)(citations omitted).  The court must find “‘that it was more probable than not that the error materially affected the verdict.'”  Pugh at 405 F.3d 390, 401 (6th Cir. 2005)(citation omitted). 

The admission of statements that are challenged under the auspices of the Confrontation Clause, identifying individuals as those who committed an offense, or implicated them in an offense, are not considered harmless error.  United States v. Pugh, 405 F.3d 390, 401 (6th Cir. 2005); United States v. Cromer, 389 F.3d 662, 676-77 (6th Cir. 2004).  Likewise, when a defendant is implicated in a way that goes, “to the very heart of the prosecutor's case,” the error is not harmless.  United States v. Cromer, 389 F.3d 662, 677 (6th Cir. 2004)(citation omitted).  In both Pugh and Cromer, the Court of Appeals for the Sixth Circuit reversed and remanded under the “plain error” analysis.  United States v. Pugh, 405 F.3d 390, 402-03 (6th Cir. 2005); United States v. Cromer, 389 F.3d 662, 679 (6th Cir. 2004).

It cannot be overstated just how vital the protections of the Confrontation Clause are.  Seemingly innocuous statements can trigger its application.  Likewise, prosecutors and/or their witnesses should not be permitted to enter improper and damaging third-party testimony under the auspices of "setting the scene," if it triggers a defendant's protections under the Confrontation Clause.  One sentence can prejudice a jury or create a presumption of guilt as opposed to innocence.  

--Jason Rapp

About the Author

Jason Rapp

Jason Rapp was born and raised in the greater Philadelphia area.  From 1991 to 1995, he attended college at Wake Forest University in Winston-Salem, NC where he graduated with a B.A. in History.  He chose to attend law school at the University of Kentucky and graduated from there in 1998.  Jason ...


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