Hearsay and the Confrontation Clause

In criminal cases, there is an inherent problem using hearsay against a criminal defendant. It seems on its face to violate the confrontation clause of the Sixth Amendment, which guarantees that the defendant shall have the right to confront the witnesses against him.

Originally, the Supreme Court took the position that the right of confrontation and the rules of evidence were the same -- in other words, that if a hearsay statement fell into a traditional hearsay exception, it was admissible. Then in Crawford v. Washington, the Court radically changed direction, and held that the right of confrontation overrode the hearsay exceptions. If the statement was "testimonial" (i.e., factual and either accusatory or important in making out the case against the accused), then the confrontation clause prevents its use against a defendant unless the defendant has an opportunity at trial or in another context (e.g., a deposition) to cross-examine the declarant..

For example, suppose that Andy Defendant is charged with drug distribution. The witness is the narcotics officer who set up the buy. Narc testifies that he met Middle Man at a bar who promised to arrange the sale. Narc testifies that Middle Man said, "I can fix you up with a big dealer. A brick of cocaine is $5000. Bring it in $100 bills and go to the Chicken Shack. The dealer always wears a top hat."

Could the defense object to some or all of this as violating the Confrontation Clause? When you think you know the answer, click here .

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