Sixth Amendment:
A. Right to Jury Trial/Booker
B. Confrontation Clause
C. Speedy Trial
D. Right to Counsel/Self Representation
E. Indictment - Variance/Deplicity
F. Miscellaneous Sixth Amendment
Confrontation Clause
Supreme Court Decisions
B. Confrontation Clause• Confrontation Clause
Davis v. Washington, 05-5224 (6/19/06)
> Defendant Davis was charged with a violation of a protective order after his girlfriend called 911 and detailed the abuse that he was inflicting as it was happening. The girlfriend failed to appear at trial and the state used the 911 tape as evidence to prove the assault. Defendant was convicted, and appealed based upon an alleged Confrontation Clause violation.
In a companion case, Defendant Hammon was charged with domestic battery after police interviewed both he and his girlfriend at their residence after a domestic dispute had occurred. The girlfriend reported to police that Hammon had hit her and thrown her down, and then she signed an affidavit to that effect. The girlfriend failed to appear for trial, and the officer testified as to her statement. The Supreme Court granted certiorari for both Davis and Hammon.
* Holding: In Crawford, the Supreme Court held that the Confrontation Clause bars admission of testimonial statements of a witness who does not appear for trial unless the witness is unavailable and the defendant had a prior opportunity for cross examination. In this case, the Court defined the delineation between “testimonial” and “nontestimonial” statements to police officers: “Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an on-going emergency.” Thus, in Davis, the Court held that the statements made by the girlfriend to the 911 operator were for the primary purpose of providing police assistance in an on-going emergency, and therefore, the statements did not violate the Confrontation Clause. In Hammon, the Court ruled that the reason for the girlfriend’s statements to the officers was to convey the facts of past events. Thus, the statements primarily served an investigative purpose. Accordingly, the statements in Hammon violated the Confrontation Clause and the conviction was reversed.
• Confrontation Clause
Whorton v. Bockting, 05-595 (2/28/07)
> Defendant was charged in state court with sexual assault on a six year old and during his trial the hearsay statements of the child were admitted. Defendant lost his state court appeals and then filed a federal habeas petition challenging the admission of the child’s statements based upon the Confrontation Clause. The district court denied his petition, and while the case was pending in the circuit court, the Supreme Court decided Crawford. Defendant then argued that Crawford should apply retroactively to his case, thus requiring exclusion of the hearsay statements. The Supreme Court granted certiorari.
* Holding: In assessing whether a rule announced in a Supreme Court decision applies retroactively, the Court first assesses whether it is an old or new rule. Old rules apply both to cases on direct and collateral review. New rules apply to cases on direct review, but only apply retroactively to cases on collateral review if (1) the rule is substantive, or (2) the rule is a “watershed rule of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.” In the case, the Court first held that a new rule is a rule that was not dictated by prior precedent existing at the time of the defendant’s conviction. In this regard, the Court ruled that Crawford announced a new rule regarding the Confrontation Clause. Further, the Court held that the rule of Crawford was indisputably procedural, not substantive.
Finally, the Court held that, in order for a rule to be considered “watershed” it must be necessary to prevent an “impermissibly large risk” of an inaccurate conviction, and it must alter a fundamental understanding of “bedrock procedural elements” of the proceeding. Noting that the only prior case to ever meet the “watershed” test was Gideon (right to appointed counsel), the Court held that Crawford did not create the kind of profound procedural rule that required its retroactive application. Accordingly, the Court ruled that Crawford does not apply retroactively to cases on collateral review, and defendant’s conviction was affirmed.
• Confrontation Clause
Melendez-Diaz v. Mass., 07-591 (6/25/09)
> Defendant was charged in Massachusetts with drug offenses. At trial, the state introduced “certificates of analysis” which showed the results of the lab testing of the drugs, in compliance with state law. Defendant objected based on the Confrontation Clause. Defendant was convicted, lost his state court appeal, and filed an appeal to the Supreme Court.
* Holding: The Court held that the “certificates of analysis” were testimonial evidence, and thus their admission violated the Confrontation Clause because defendant was denied his right to confront and cross examine their authors. The Court emphasized that the “certificates of analysis” did not qualify as “business records” or “public records” under the hearsay rules because they were prepared for use in court. Further, even if the records had qualified as business or public records, their authors would be subject to cross examination under the Confrontation Clause. The Court reasoned that the same was true with a clerk’s certification about the absence of a public record under the hearsay rules. In such a situation, the clerk must be subjected to cross examination under the Confrontation Clause. Accordingly, defendant’s conviction was reversed.
• Confrontation Clause - Forfeiture
Giles v. Crawford, 07-6053 (6/25/08)
> Defendant was charged with murder of his ex-girlfriend and he claimed self-defense. At trial, the prosecutor sought to introduce the ex-girlfriend’s hearsay statement that several weeks before the murder defendant had physically abused and threatened her. The trial court admitted the statements, and the California Court of Appeal and Supreme Court both affirmed the conviction, finding that defendant had forfeited his confrontation right by his own wrongdoing. Defendant appealed and the Supreme Court granted certiorari.
* Holding: The Court held that the doctrine of forfeiture by wrongdoing is a common-law exception to a defendant’s confrontation right. Nonetheless, the Court ruled that the doctrine only applies where the defendant procured the witness’ death with the “design” to keep the witness from testifying against defendant at trial. The Court found that, although defendant killed his ex-girlfriend, he did not do so with the purpose to prohibit her from testifying. Accordingly, the Court held that introduction of the ex-girlfriend’s statement violated the Confrontation Clause. Thus, defendant’s conviction was reversed.
Sixth Circuit
• Confrontation ClauseU.S. v. Garcia-Meza, 03-2485 (4/5/05)
> Defendant was tried and convicted for first degree murder of his wife. At trial, the government introduced the hearsay statement of defendant’s deceased wife that he had beaten her up several months before the murder because she had talked to her ex-boyfriend. Defendant challenged the statement on appeal claiming that he was denied the right to confrontation under Crawford v. Washington because the statement was testimonial in that it was made to police officers.
* Holding: The court concluded that it did not have to reach the issue of whether the statement of the deceased wife was testimonial, and thus inadmissable under the Confrontation Clause, because the court found that defendant had forfeited his right to confront based upon his wrongdoing. The rule of forfeiture by wrongdoing extinguishes confrontation claims on equitable grounds. Because defendant had caused his wife’s death (a fact that he admitted at trial) he was not then able to challenge hearsay statements made by his wife upon confrontation grounds.
• Confrontation Clause
U.S. v. Pugh, 03-3241 (5/3/05)
> Defendants were charged with bank robbery. At trial, a police officer testified that a witness had told him that defendants were the two bank robbers that were shown in a picture from a bank surveillance tape. Defendants objected to the testimony, but the district court admitted the evidence. Defendants were convicted and challenged the admission of the hearsay statement on appeal.
* Holding: Pursuant to Crawford v. Washington, in analyzing a Confrontation Clause claim the court must consider whether (1) the statement was testimonial, (2) the statement was hearsay, and (3) any error in admitting the statement was harmless. First, the court concluded that the statement of the witness was testimonial because it was made to a police officer during interrogation, and a reasonable person would have assumed that the police would use the statement against the accused. Second, the court found that the statement was hearsay because it was definitely admitted for the truth of the matter asserted. Third, the court found that the admission of the statement was not harmless because there was no other evidence to place defendants at the scene of the crime and it was “more probable than not” that the evidence “materially affected the verdict.” Accordingly, the conviction was reversed.
• Confrontation Clause
U.S. v. Gibson, 03-6592 (5/24/05)
> During trial for conspiracy, false statement, and violations of federal mine safety law, the government introduced into evidence double hearsay statements that were first made by one defendant, and then repeated by a co-defendant. Defendant challenged the statements on appeal under the Confrontation Clause.
* Holding: The court first held that the statements were non-testimonial and thus, did not implicate the Supreme Court decision in Crawford v. Washington. The court then applied the traditional rule for non-testimonial hearsay statements: hearsay statements are admissible under the Confrontation Clause only if the evidence falls within a firmly rooted hearsay exception, or if it contains particularized guarantees of trustworthiness. The court found that the hearsay testimony was particularly trustworthy because it was made between co-defendants and not to the police, and because the declarants were not “attempting to curry favor or shift the blame.” Accordingly, admission of the statements was affirmed.
• Confrontation Clause
Madrigal v. Bagley, 03-4118 (6/27/05)
> Defendant was charged in state court with aggravated murder and aggravated robbery for killing a clerk during the robbery of a restaurant. There was no physical evidence to tie defendant to the robbery, and the eyewitness accounts were equivocal. A codefendant, however, told police that he was the getaway driver, and that defendant killed the clerk. The codefendant refused to testify at defendant’s trial based upon the Fifth Amendment, and the state then introduced the codefendant’s 79 page statement to the jury. Defendant appealed through the state court system based upon a Confrontation Clause violation. The Ohio Supreme Court found a Confrontation Clause violation, but found the error harmless. Defendant filed a habeas petition in federal district court, and the district court granted habeas relief. The state appealed.
* Holding: The court first held, pursuant to agreement of the parties, that admission of the codefendant’s statements violated the Confrontation Clause. The court then analyzed five factors to determine if the error was harmless: (1) importance of the testimony in the state’s case, (2) whether the testimony was cumulative, (3) presence of corroborating or contradicting evidence, (4) extent of cross examination otherwise permitted, and (5) overall strength of prosecution’s case. The court ruled that the codefendant’s testimony was a key part of the state’s case, and that the evidence was otherwise weak. Accordingly, the Sixth Circuit affirmed the district court’s ruling vacating defendant’s conviction and death sentence.
• Confrontation Clause
U.S. v. Franklin, 03-2439 (7/19/05)
> Defendant was indicted for multiple offenses involving the robberies of ATM machines and an armored truck. At trial, the government introduced the hearsay statement of a codefendant. The codefendant had confessed to a close friend of his, and in so doing, had implicated defendant. The government put the close friend on the witness stand to testify to the confession. Defendant was convicted, and appealed.
* Holding: The court first determined that the statement of the codefendant to the close friend was not testimonial, and thus did not implicate the Supreme Court’s decision in Crawford. The court then analyzed the hearsay statement under traditional Confrontation Clause standards which require that a hearsay statement is not admissible unless it fits within a “firmly rooted” hearsay exception, or it otherwise bears particularized guarantees of trustworthiness. The court chose not to decide whether the codefendant’s statement fell within a firmly rooted hearsay exception, because the court concluded that the statement was particularly trustworthy. The court considered that the statement was self-inculpatory, made to a close friend (instead of law enforcement), was not made in the context of bragging, and did not minimize his own role in the offense. Thus, the hearsay statement of the codefendant was properly admitted and the conviction was affirmed.
• Confrontation Clause
U.S. v. Kappell, 04-1333 (8/9/05)
> Defendant was charged with nine counts of child sex abuse. At trial, medical professionals testified that the children had told them that defendant had abused them. The children also testified, by closed circuit television, but many of their responses to cross-examination were non-responsive. Defendant was convicted and challenged the admission of the testimony of the medical professionals under the Confrontation Clause.
* Holding: The court found no Confrontation Clause violation in admitting the medial professionals’ testimony because the children actually testified at trial and were subject to cross examination. The court declined to declare the children unavailable because of their many non-responsive answers. The court emphasized that the Confrontation Clause requires only the opportunity to conduct cross examination, but does not guarantee effective cross examination. Defendant’s conviction was thus affirmed.
• Confrontation Clause
U.S. v. Martinez, 03-3833 (11/17/05)
> Defendants were charged with a drug conspiracy and at trial the government introduced an anonymous letter that had warned the conspirators as to who was cooperating with the government and to be careful in their dealings. Defendants challenged admission of the letter on appeal as a violation of the Confrontation Clause.
* Holding: The court held that the anonymous letter was not “testimonial” pursuant to the Supreme Court decision in Crawford. The court concluded that, because the statement qualified under the coconspirator hearsay exception, (See III. Evidence, supra), the statement was necessarily not testimonial. Therefore, the court analyzed it under traditional Confrontation Clause analysis and held that the coconspirator exception (FRE 801(d)(2)(E)) is a firmly-rooted exception to the hearsay rules, and accordingly, admission of the letter did not offend the Confrontation Clause.
• Confrontation Clause
U.S. v. Saviores, 04-2140 (11/30/05)
> Defendant was charged with drug trafficking and firearms offenses and at trial an officer testified about receiving information from an informant that led to the execution of a search warrant at defendant’s residence. Defendant moved for production of the informant’s identity and challenged the testimony as a violation of the Confrontation Clause. The district court denied the motion, and defendant appealed.
* Holding: Ordinarily, hearsay testimony about an informant’s statements do not implicate the Confrontation Clause if offered solely as background evidence and not as substantive evidence of guilt. The court held, however, that the government had not used the evidence provided by the informant solely as background evidence, but instead utilized the evidence in closing argument as substantive evidence of defendant’s guilt. Nonetheless, the court found that the evidence of defendant’s guilt was otherwise overwhelming and held that the error was harmless.
• Confrontation Clause
U.S. v. Johnson, 04-5110 (11/30/05)
> During the course of a RICO investigation, codefendant Hardin agreed to cooperate with the government. Hardin taped numerous conversations that he had with codefendant Stone, during which Stone implicated defendant. Defendant was subsequently charged with RICO violations, and the taped statements were admitted against defendant at trial. Defendant challenged the statements on appeal as violations of the Confrontation Clause.
* Holding: In order to be considered testimonial pursuant to Crawford, the statement must be made with the intention to bear testimony against the accused. The court found that Stone trusted Hardin, and had no idea that Hardin was recording the conversation. The court concluded that the statements were not testimonial, and thus, the court evaluated the statements under traditional Confrontation Clause analysis. Under such standard, a hearsay statement does not violate the Confrontation Clause if the declarant is not available and either the statement falls within a firmly-rooted hearsay exception or it bears particularized guarantees of trustworthiness. In analyzing whether statements bear guarantees of trustworthiness, the court looks not to the extent to which the statements are corroborated by other evidence, but instead to the circumstances surrounding the making of the statements themselves. In the case, the court held that the statements were supported by sufficient guarantees of trustworthiness based upon the length of Stone’s and Hardin’s relationship (25 years), Stone had no motivation to lie, Stone did not know that Hardin was cooperating, and Stone spoke freely on many subjects to Hardin, only a few of which involved defendant. Accordingly, the admission of the statements was affirmed.
• Confrontation Clause
U.S. v. Katzopoulos, 04-6501 (2/15/06)
> Defendant was convicted of multiple counts of mail fraud and conspiracy and at sentencing, the district court admitted into evidence hearsay statements to establish the loss amount and the number of victims. Defendant argued on appeal that the Confrontation Clause, as applied in the post-Crawford and Booker world, should apply at sentencing.
* Holding: Following a long line of precedent, the court held that the Confrontation Clause does not apply at sentencing. The court acknowledged that this was a question that the Supreme Court may revisit, but under current law, the court chose to adhere to the long-standing rule. Thus, the sentence was affirmed.
• Confrontation Clause
Stuart v. Wilson, 05-3092 (3/27/06)
> Defendant was charged in state court with rape of a young child. At trial, the state court permitted several family members to testify about the child’s out-of-court statements regarding defendant’s activities. The prosecution did not establish that the child was unavailable to testify. Defendant appealed through the state court system, and then filed a federal habeas petition. The district court denied the petition, and defendant appealed challenging admission of the statements under the Confrontation Clause because the witness was not unavailable and because the statements did not contain sufficient guarantees of trustworthiness.
* Holding: In a habeas action from a state court proceeding, a conviction may only be reversed if the trial court violated clearly established federal law. In the case, the court first held that it is not clearly established under federal law that unavailability of a witness is a prerequisite to admissibility under the Confrontation Clause. The only context in which unavailability clearly must be shown is where the hearsay statements were made in the course of a prior judicial proceeding. Thus, the court held that the failure to prove unavailability did not violate federal law.
The court then considered the admissibility of the evidence under traditional Confrontation Clause analysis which provides that a hearsay statement is admissible if it falls within a firmly rooted hearsay exception, or otherwise contains particularized guarantees of trustworthiness. The child’s statement had been admitted under Ohio’s child rape hearsay exception, Rule 807. The court found that this was not a firmly-rooted hearsay exception. In analyzing the guarantees of trustworthiness for a child rape victim’s statements, the court considers five factors: (1) spontaneity; (2) consistent repetition; (3) mental state of declarant; (4) use of non-age appropriate terminology; and (5) lack of a motive to fabricate. Considering the factors in relation to the case, the court concluded that the child’s statements were supported by particularized guarantees of trustworthiness and upheld the admission of the testimony. Thus, the conviction was affirmed.
• Confrontation Clause
Fulcher v. Motley, 03-6216 (4/18/06)
> Defendant was charged with murder in state court and at trial the state introduced the hearsay statement of defendant’s wife to police after the murder. The trial court admitted the hearsay testimony as a statement against interest and found that defendant’s wife was unavailable because she claimed spousal privilege at trial. Defendant appealed through the state courts and then filed a federal habeas petition claiming that his right to confrontation was violated. The district court denied the petition and defendant appealed.
* Holding: The court held that, under the law applicable at the time of defendant’s state conviction, hearsay evidence was admissible under the Confrontation Clause only if it either fell within a firmly-rooted hearsay exception, or contained particularized guarantees of trustworthiness. First, the court held that the hearsay exception for statements against interest was not firmly-rooted. Second, the court held that the wife’s statement was not particularly trustworthy because it tended to shift blame away from herself, was made while she was in custody, and was made in response to several leading questions. Finally, the court found that the admission of the wife’s statement was not harmless because the evidence was otherwise equivocal. The court noted that it did not have to decide whether the Supreme Court’s ruling in Crawford would apply retroactively to the case because the court found that reversal was warranted based upon pre-Crawford law. Judge Clay opined in a concurrence that Crawford should apply retroactively.
• Confrontation Clause
Danner v. Motley, 04-5363 (5/11/06)
> Defendant was charged in state court with rape and sodomy. At trial, the court permitted the state to present the testimony of the child victim via closed circuit television so that the child did not have to be in the room with defendant. Defendant appealed through the state court system, and then filed a habeas petition in federal court. The district court denied the petition and, on appeal, defendant claimed that the closed circuit television procedure violated his rights under the Confrontation Clause.
* Holding: A defendant’s right to face-to-face confrontation of a witness may only be denied where necessary to further an important public policy and where the reliability of the testimony is otherwise assured. Courts have held that two circumstances may justify the use of closed circuit television for a child sex victim: (1) fear of psychological trauma and/or injury to the child; or (2) concern that the child may be so overwhelmed that the truth-finding function of the trial is undermined. The court held that the trial court had made sufficient findings to support its conclusion that the truth finding function would be undermined if the child victim were forced to testify in front of the victim. Accordingly, the conviction was affirmed.
• Confrontation Clause
U.S. v. Baker, 05-3336 (8/15/06)
> Defendant was charged with conspiracy and mail fraud and at trial the district court admitted postal records under the business records exception, FRE 803(6). On appeal, defendant challenged admission of the records under the Supreme Court decision in Crawford and the Confrontation Clause.
* Holding: The court held that, pursuant to Crawford, business records are non-testimonial. Thus, the court found Crawford inapplicable and affirmed the district court ruling.
• Confrontation Clause
U.S. v. Sandles, 02-2466 (11/27/06)
> During defendant’s bank robbery trial, the government introduced an exhibit containing, among other documents, an affidavit from a bank employee that stated that she researched the bank records and concluded that the bank’s FDIC certificate was in effect at the time of the bank robbery. Defendant was representing himself pro se and failed to object to the affidavit. No other competent evidence was presented during the trial to establish the bank’s FDIC status. Defendant was convicted and appealed.
* Holding: The court held that the Confrontation Clause does not permit conviction by affidavit. Under Crawford, the affidavit was a testimonial statement which could not be admitted without affording defendant the opportunity to cross examine the affiant. Accordingly, the court found plain error in the admission of the affidavit, reversed defendant’s conviction, and remanded the case for retrial.
• Confrontation Clause
U.S. v. Mooneyham, 04-5189 (1/9/07)
> Defendant was charged with drug trafficking and at trial the government introduced, through an agent, the testimony of a codefendant who implicated defendant in drug trafficking activities. The statement made by the codefendant was made during discussions with an undercover officer about the drug trade. The district court admitted the statement and defendant was convicted. Defendant appealed and argued that admission of the statement violated the Confrontation Clause.
* Holding: The court first held that, under Crawford, the statement was not testimonial because the codefendant did not know at the time he made the statement that he was talking to an undercover officer. Thus, he could not possibly anticipate that his statement would be used against defendant to prosecute a crime. Second, the court analyzed the statement under the traditional Confrontation Clause framework and held that, because the statement fit within a firmly rooted hearsay exception (co-conspirator statements - FRE 801(d)(2)(E)), its admission did not violate defendant’s right to confrontation. Thus, the conviction was affirmed.
• Confrontation Clause
Hamilton v. Morgan, 05-5614 (1/24/07)
> Defendant was charged in state court with armed robbery and evading arrest. By the time of trial, the victim was stationed overseas in the military, and for each of three scheduled trial dates the prosecution sought to have the victim declared unavailable and to introduce the transcript of his testimony from the preliminary hearing. At the time of the third trial date, the victim actually was available to come to the trial, but flight arrangements could not be made and then the victim could not be reached as the trial date finally arrived. At the trial, the transcript was admitted by the trial court and defendant was convicted. After exhausting his state court appeals, defendant filed a habeas petition in the district court and claimed that his right to confrontation was violated because the victim was available. The district court denied the petition and defendant appealed.
* Holding: The unavailability exception to the Confrontation Clause contains two requirements: (1) the witness’ testimony was given at a prior judicial proceeding and was subject to cross examination by the defendant; and (2) the government made a good faith effort to obtain the witness’ presence for the trial. In the case, the court first found that the victim had given prior testimony at a preliminary hearing and that defendant had the opportunity to cross examine him. Second, the court held that the state prosecutor had no available legal mechanism to bring the victim before the trial court for testimony. Further, the state made a good faith effort to try to obtain the victim’s voluntary presence, but it could not be reasonably procured. Accordingly, the court found that the witness was unavailable and admission of the transcript was proper.
• Confrontation Clause
U.S. v. Stover, 05-3562 (1/30/07)
> During defendant’s trial on drug conspiracy charges, the government played tape recordings of conversations between defendant and a coconspirator that were intercepted by the government. Defendant was convicted and appealed, arguing that admission of the tape recordings violated the Confrontation Clause.
* Holding: Pursuant to Crawford, testimonial statements may not be admitted into evidence unless the defendant is afforded the opportunity for cross examination. In the case, the court held that the statements on the tape recordings by the coconspirator were not testimonial because they were made during the course of the drug conspiracy, and not knowingly made to police officers. Further, the statements fell within a firmly rooted hearsay exception – the coconspirator exception. Accordingly, the admission of the statements was affirmed.
• Confrontation Clause
U.S. v. Franco, 99-2194 (4/11/07)
> Defendant was charged with drug trafficking and at trial attempted to impeach an informant by cross examining him about his previous foreign convictions and his misconduct in a prior case where he was a government informant. The district court limited defendant’s cross examination in both areas, defendant was convicted, and he appealed.
* Holding: First, the court found that the limitation of cross examination regarding prior foreign convictions was proper. The court noted that the district court permitted defendant to elicit from the informant that he lied about the quantity and substance of the prior convictions. Given this circumstance, and the fact that the convictions were more than ten years old and subject to exclusion under FRE 609(b), the court found no error in the limitation of cross examination on the subject. Second, the court ruled that the district court’s limitation of cross examination regarding the informant’s prior misconduct was also proper. The district court permitted defendant to elicit the facts regarding the prior misconduct, but prohibited examination pertaining to the fact that the prior government agent concluded that the earlier misconduct amounted to entrapment of the target. The court ruled that, although the prior misconduct evidence was marginally relevant to defendant’s entrapment defense, it would have confused the jury and caused it to rely heavily on the opinion of a government agent from a prior, unrelated case. Accordingly, the conviction was affirmed.
• Confrontation Clause
U.S. v. Hearn, 06-5854 (9/11/07)
> Defendant was charged with drug trafficking and possessing a firearm in relation to drug trafficking. At trial, the government introduced the hearsay statements of a confidential informant which indicated that defendant possessed the narcotics in question and that he intended to distribute them at a party. The prosecutor claimed that the statements were introduced for the non-hearsay purpose of showing the reasons for the police officer’s subsequent actions. The district court admitted the evidence, defendant was convicted, and he appealed.
* Holding: The court held that the introduction of the confidential informant’s statements violated defendant’s Sixth Amendment right to confrontation. An informant’s hearsay statements may be admitted as “background evidence” without violating the Confrontation Clause, however, the court found that the government exceeded the bounds of permissible background evidence based on the following: (1) the repeated nature of the questioning regarding the statements, (2) the “excessive” detail provided by the witness, and (3) the prosecutor’s reference to the hearsay statements in closing. Further, the court ruled that the error was not harmless because of the lack of other proof against defendant regarding the intent to distribute. Accordingly, defendant’s conviction was reversed and the case remanded for a new trial.
• Confrontation Clause
U.S. v. Powers, 06-1684 (9/12/07)
> Defendant was charged with drug trafficking. At trial, the government introduced, through the testimony of police officers, the hearsay statements of a confidential informant. The hearsay testimony established three points: (1) the informant knew that defendant was a major cocaine supplier; (2) the informant’s identification of defendant’s vehicle during a controlled drug purchase; and (3) the informant’s identification of defendant himself during the drug transaction. The district court admitted all of the hearsay testimony and defendant appealed.
* Holding: The court held that the admission of the hearsay evidence violated defendant’s rights under the Confrontation Clause. First, the information about defendant being a major drug supplier was not properly considered “background evidence” that was offered only to show proper context for the undercover sting operation by the police. The court emphasized that the government could have merely offered evidence to show that the police set up a sting operation in which the informant was to purchase narcotics from defendant. The additional information that defendant was a major cocaine supplier crossed the line of “background evidence,” and was instead improper testimonial hearsay.
Regarding the informant’s identification of defendant’s vehicle and defendant, the court ruled that such testimony was likewise improper. Pursuant to the Supreme Court’s decision in Davis (See P.V., Issue # 8), hearsay evidence is testimonial if the statements were made primarily for an investigative purpose. Because the identification of defendant and his vehicle was primarily investigative, the statements were testimonial hearsay, and violative of the Sixth Amendment. Therefore, all three pieces of hearsay evidence were admitted in violation of the Confrontation Clause. Nonetheless, the court held that the evidence of defendant’s guilt was overwhelming and the admission of the hearsay evidence constituted harmless error. Accordingly, defendant’s conviction was affirmed.
• Confrontation Clause
U.S. v. McGee, 06-2158 (6/24/08)
> Defendant was charged with possession of crack with intent to distribute. At trial, the government introduced an officer’s testimony about conversations that an informant had with defendant prior to defendant’s arrest. Specifically, the officer testified that he asked the informant, after the conversations, to clarify with whom he was speaking, and the informant stated that he was speaking with defendant. Defendant was convicted and he appealed, arguing that the admission of the informant’s hearsay statement violated his right to confrontation.
* Holding: The court held that the statement of the informant, that he was talking to defendant when arranging the drug purchase, was a testimonial statement. Accordingly, the court ruled that the admission of the informant’s statement violated the Confrontation Clause. Nonetheless, the court found that the admission of the statement was harmless because the evidence of defendant’s guilt was otherwise overwhelming. Therefore, defendant’s conviction was affirmed.
• Confrontation Clause
U.S. v. Warman, 05-4416 (8/18/09)
> Defendant was charged in a major drug conspiracy involving the Outlaw Motorcycle Club and at trial the government introduced numerous statements made to FBI agents and an informant. Defendant objected to only one of the statements under the Confrontation Clause, and the district court admitted the evidence. Defendant was convicted and he appealed.
* Holding: In order to trigger Confrontation Clause protection, a statement must be testimonial in nature, and it must be hearsay. The court found that most of the statements at issue were “provided merely by way of background,” and thus were not offered for the truth of the matter asserted. Thus, statements related to why the informant became and informant, and how the FBI first got turned on to defendant were properly admitted. The court found that one of the statements, however, identified defendant as a supplier of narcotics. This statement clearly was not background information, but the court nonetheless found that its admission was harmless because of the significant other evidence on the point. Accordingly, the court found no plain error, and the one improper admission of evidence was harmless.
• Confrontation Clause
U.S. v. Deitz, 05-3410 (8/20/09)
> Defendant was charged in a major drug conspiracy involving the Outlaw Motorcycle Club. At trial, the government introduced hearsay evidence from an FBI agent which indicated that the FBI was surveilling defendant because of tips received by the FBI that Outlaw members were transporting narcotics from Dayton, Ohio to Kentucky. Defendant did not object to the evidence at trial, but argued on appeal that its admission violated the Confrontation Clause.
* Holding: The court found no plain error in the admission of the testimony because it was merely offered as “background information,” and did not relate to facts going to the “very heart of the prosecutor’s case.” Further, the court noted that had defendant objected at trial, the district court could have properly limited the scope of the testimony. Accordingly, defendant’s conviction was affirmed.
• Confrontation Clause
Jensen v. Romanowski, 08-1758 (12/9/09)
> Defendant was charged in state court with criminal sexual conduct with an eleven year old. At trial, an officer testified about defendant’s sexual conduct underlying a prior conviction for criminal sexual conduct. The prosecutor referenced the officer’s testimony in his voir dire, opening statement, during the trial, and in closing argument. Defendant was convicted, lost his state court appeals, and filed a federal habeas petition. The district court granted the petition, finding a violation of the Confrontation Clause. The state appealed.
* Holding: The court held that the officer’s testimony constituted hearsay, and because the state had not offered testimony from the victim of the prior offense or an eyewitness, the officer’s testimony violated the Confrontation Clause. Further, the court found that the error was not harmless because the state utilized the hearsay testimony throughout its case, and the evidence against defendant, while strong, was not overwhelming. Accordingly, the district court’s decision was affirmed.
• Confrontation Clause
Earhart v. Konteh, 07-4127 (12/18/09)
> Defendant was charged with gross sexual imposition in state court, among other offenses. Prior to trial, the state obtained a video-taped deposition of the victim, during which defendant was able to cross examine the victim. At the time of trial, the victim was on vacation, and the state made no effort to obtain her presence. Instead, the state moved to admit the video deposition. Defendant objected based on the Confrontation Clause, but the trial court admitted the evidence. Defendant was convicted, lost his state court appeal, and filed a federal habeas petition. The district court denied the petition and defendant appealed.
* Holding: First, the court held that defendant did not waive his right to confrontation through participation in the video deposition. The court held that such a waiver would require an affirmative agreement by defendant that the deposition would be admissible at trial. Finding no such evidence in the record, the court held that defendant did not waive his right to confrontation. Second, the court ruled that the victim was not “constitutionally unavailable” for Confrontation Clause purposes. The court found that the state did not even attempt to secure the witness’ appearance through compulsory process, and thus make a “good-faith effort to obtain [the victim’s] presence.” Finally, the court ruled that the Confrontation Clause violation was not harmless error because, without the victim’s testimony, the state was left with conflicting accounts from other eyewitnesses. Accordingly, defendant’s conviction on the gross sexual imposition count was reversed.
• Confrontation Clause-Recross Examination
U.S. v. Payne, 05-1280 (2/13/06)
> Defendant was charged with counterfeiting and at trial the district court prohibited defendant from conducting recross examination of a particular witness. Defendant appealed claiming that his right to confrontation had been violated.
*Holding: The court held that a defendant enjoys a right under the Confrontation Clause to conduct recross examination of a witness if the government elicits new matters on redirect that were not previously covered. In the case, the court found that the government had not presented any new information during redirect examination, and thus, the district court did not err in denying defendant’s request to conduct recross examination of the witness.
• Confrontation Clause - Recall of Witness
Stewart v. Wolfenbarger, 04-2419 (11/9/06)
> Defendant went to trial on state murder charges and during the presentation of his case in chief, he requested to recall one of the state’s witnesses in order to conduct further impeachment. The trial court denied the request. After losing his state court appeal, defendant filed a federal habeas petition claiming that his right to confrontation had been violated. The district court denied the petition on this point and defendant appealed.
* Holding: The Confrontation Clause provides a defendant with the right to confront witnesses. The right may not apply, however, where a defendant’s ability to cross examine is only partially limited and where the barred questioning would have only elicited facts that were already in evidence. In the case, the court found that defendant had been allowed to cross examine the witness and that the recall of this witness would only have served to rehash evidence that was already in the record. Thus, the court found that the state court had not unreasonably applied federal law and the district court ruling was affirmed.
• Confrontation Clause - Lie Detector Test
U.S. v. Gardiner, 05-1247 (9/12/06)
> Defendant was charged with a RICO conspiracy and during the trial proceedings the government failed to turn over evidence that two of its witnesses failed lie detector tests. Defendant argued on appeal that his right to confrontation had been violated.
* Holding: The court held that defendant was not entitled to the polygraph examination results. Under circuit precedent, polygraph examinations are generally inadmissible in criminal proceedings and thus, defendant would not have been able to utilize the results had they been provided. Accordingly, the conviction was affirmed.
• Confrontation Clause - Impeachment
Vasquez v. Jones, 04-2274 (5/8/07)
> Defendant was charged with murder. At trial, a key witness was unavailable and the trial court permitted the prosecution to introduce the witness’ prior testimony from the preliminary hearing. In response, defendant offered to impeach the witness’ prior testimony with the witness’ felony record. Relying on a State of Michigan evidence rule, the trial court disallowed the impeachment because defendant had not attempted to cross examine the witness regarding the convictions at the preliminary hearing. Defendant was convicted, lost his state court appeals, and filed a federal habeas petition. The district court denied the petition and defendant appealed.
* Holding: Relying on the Supreme Court decisions in Davis v. Alaska and Delaware v. Van Arsdell, the court held that the trial court unreasonably applied federal law regarding the Confrontation Clause and impeachment of witnesses. The court ruled that defendant could not have reasonably been expected to cross examine the witness regarding his record at the preliminary hearing given the quantity of discovery and complexity of the case. Thus, the court held that the trial court’s ruling excluding the witness’ prior record unlawfully frustrated defendant’s right to impeach the witness under the Confrontation Clause. Further, the court held that the error was not harmless. Accordingly, the district court’s ruling was reversed and the writ granted.
• Confrontation Clause - Competency
Haliym v. Mitchell, 04-3207 (7/13/07)
> Defendant was charged in state court with two murders and at trial a seven year old eyewitness testified against him. Defendant challenged the witness’ testimony as a violation of his right to confrontation because the witness was incompetent. Defendant was convicted, lost his state court appeal, and filed a federal habeas petition. The district court denied the petition and defendant appealed.
* Holding: The Confrontation Clause guarantees the opportunity for cross examination, but not cross examination that is “effective in whatever way, and to whatever extent, the defense might wish.” In the case, the court held that defendant’s right to confrontation was not violated by admission of the seven year old witness’ testimony. The court found that the witness understood that he should tell the truth and that there would be punishment if he lied. Further, defendant did cross examine the witness and he was generally responsive to the cross examination. Accordingly, the district court ruling was affirmed.
• Confrontation Clause - Bruton
U.S. v. Vasilakos, 05-3166 (11/21/07)
> Defendant and several others were charged with conspiracy, mail fraud, and money laundering. At trial, the government introduced confessions of the codefendants, that also implicated defendant. In order to protect defendant’s confrontation rights, the government redacted the confessions by taking out defendant’s name and replacing it with “another person.” Further, the district court instructed the jury to consider the confessions only in relation to the co-defendant who made the statement. Defendant was convicted and he appealed.
* Holding: Pursuant to the Sixth Amendment and Bruton, the government may not introduce the confession of a co-defendant if it implicates the defendant. In the case, the court found that the redacted confession did not clearly implicate defendant because the government was prosecuting multiple defendants, the statement referred only to “another person,” and the district court provided an appropriate limiting instruction. Accordingly, Bruton was not violated and defendant’s conviction was affirmed.
• Confrontation Clause/Bruton
U.S. v. Johnson, 08-1662 (9/18/09)
> Defendant was charged with conspiracy, bank robbery, and murder during a bank robbery. At trial, the government introduced an undercover, recorded statement of a codefendant who implicated defendant in the offenses. Defendant was convicted and argued on appeal that the admission of the statement violated the Confrontation Clause and Bruton.
* Holding: First, the court held that the recorded statement of the codefendant was not testimonial because the codefendant did not know at the time he was being recorded by law enforcement. Therefore, the statement did not violate the Confrontation Clause. Second, the court clarified that the Supreme Court, in the recent decisions Davis and Whorton, abrogated the prior rule of Ohio v. Roberts. Thus, if a statement is not testimonial, it can never violate the Confrontation Clause. Finally, the Court held that, because Bruton is grounded in the Confrontation Clause, a non-testimonial statement can never violate Bruton. Accordingly, defendant’s conviction was affirmed.
• Confrontation Clause - Bruton
U.S. v. Driver, 04-4470 (8/1/08)
> Defendant was charged with numerous other defendants with RICO and drug trafficking violations. At trial, an officer testified as to hearsay statements made by a codefendant that the codefendant participated in two murders and drug trafficking activity. The statements did not mention or reference defendant. Defendant was convicted and argued on appeal that his right to confrontation was violated.
* Holding: The Confrontation Clause is not violated where a codefendant’s confession is introduced against the codefendant, but it in no way implicates the defendant. The court held that even if the codefendant’s statement did violate defendant’s confrontation right by helping the government to prove the underlying conspiracy, any error was harmless because substantial other evidence proved the drug conspiracy against defendant. Accordingly, the district court ruling admitting the evidence was affirmed.
• Confrontation Clause-Defendant’s Presence
Gray v. Moore, 06-3547 (3/26/08)
> Defendant was charged in state court with aggravated murder and kidnaping. During trial, a witness testified that defendant put a gun to her head, after defendant shot his own brother, and forced her to accompany him to the front of the house. In the middle of this testimony, defendant blurted several times out that the witness was lying. As a result, the judge removed defendant from the courtroom for the remainder of the witness’ testimony. Defendant was subsequently convicted for both the aggravated murder of his brother and the kidnaping of the witness. Defendant lost his state court appeal and filed a federal habeas petition claiming that the trial judge violated his right to confrontation by excluding him from the courtroom without first giving him a warning. The district court denied the petition and defendant appealed.
* Holding: Pursuant to the Supreme Court’s decision in Illinois v. Allen, a trial court must first warn a defendant that continued disruptive behavior will result in his or her removal from the courtroom before the defendant may in fact be removed. Thus, the trial court violated defendant’s right to confrontation by removing him without first providing warning. Additionally, the court held that the removal violated a substantial right of defendant in regard to the kidnaping conviction, because the witness was the only evidence regarding the kidnaping charge. The court held, however, that reversal was not required for the aggravated murder conviction because there was substantial evidence of defendant’s guilt that was introduced other than the witness in question.
• Confrontation Clause - Supervised Release
U.S. v. Kirby, 04-6226 (8/15/05)
> Defendant’s probation officer filed a petition to violate defendant’s supervised release, and at the violation hearing, the probation officer testified about illegal conduct in which defendant engaged during his supervision. The probation officer’s testimony was based upon out-of-court statements from police officers and the victims of defendant’s criminal conduct. The district court revoked defendant’s supervised release, and he appealed based upon the Confrontation Clause.
* Holding: Deciding an open question in the Sixth Circuit, the court held that the Confrontation Clause does not apply to hearings for revocation of supervised release. The court reasoned that the Sixth Amendment applies to “criminal prosecutions,” and the Supreme Court has held that parole and probation revocations are not criminal prosecutions. Accordingly, the revocation was affirmed.