MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001
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Part V. Evidence - Part V(A) 9. Admissibility: Right Of Confrontation

        Part V(A) 9    Right Of Confrontation: General Principles
        Part V(A) 9a  Right Of Confrontation: Admission Of Prior Testimony
        Part V(A) 9b  Right Of Confrontation: Finding Of Unavailability Of Out-Of-Court Declarant
        Part V(A) 9c  Right Of Confrontation: Proof Of Adequacy Of Indicia Of Reliability
        Part V(A) 9d  Right Of Confrontation: Admissibility Of Out-Of-Court Statements Within Exceptions To Hearsay Rule
        Part V(A) 9e  Right Of Confrontation: Coconspirator Statements Not Challenged By Right Of Confrontation
        Part V(A) 9f   Right Of Confrontation: Defendant's Right Of Confrontation Includes Right To Be Present At All Stages Of Trial
        Part V(A) 9g  Right Of Confrontation: Placement Of Screen Between Defendant And Adverse Witness Violates Confrontation Clause
        Part V(A) 9h  Right Of Confrontation: Effect Of Defendant's Voluntary Absence From Trial
        Part V(A) 9i  Right Of Confrontation: Defendant Has Right To Be Present During Jury Selection
        Part V(A) 9j  Right Of Confrontation: Effect Of Illness Of Defendant

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

Part V(A) 9    Admissibility: Right Of Confrontation: General Principles

CAVEAT: See Publication Preface and Caveats.

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300.26 Confrontation Or Cross-Examination

The Sixth Amendment provides, in part: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him......"

This provision confers on an accused the right to confront face-to-face in the courtroom those who give testimony against him or her.

The Confrontation Clause reflects a preference for face-to-face confrontation at trial. A primary interest secured by confrontation is the right of cross-examination.

Douglas v. Alabama, 380 U.S. 415 (1965)
Ohio v. Roberts, 448 U.S. 56 (1980)
United States v. Inadi, 475 U.S. 387 (1986)

If an out-of-court declarant testifies in court, there is no confrontation problem because the accused then has the right to confront that witness and to cross-examine him or her with reference to the out-of-court statement.

California v. Green, 399 U.S. 149 (1970)
Nelson v. O’Neil, 402 U.S. 622 (1971)

To establish a violation of the Confrontation Clause, a defendant is not required to show prejudice with respect to the trial as a whole; the focus is on individual witnesses.

United States v. Sasson, 62 F.3d 874 (7th Cir. 1995)

In a proceeding involving an alleged offense against a child, a court may find that the child is unable to testify in open court in the presence of the defendant and may order that the live testimony of the child be taken by two-way closed circuit television, or that the child's deposition be taken and videotaped.

18 USC 3509(b)(1), 3509(b)(2)
See United States v. Boyles, 57 F.3d 535 (7th Cir. 1995)

See Part V(A) 9g  [Right Of Confrontation: Placement Of Screen Between Defendant And Adverse Witness Violates Confrontation Clause].

A defendant has a right under the Confrontation Clause to attend depositions.

Christian v. Rhode, 41 F.3d 461 (9th Cir. 1994)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

Part V(A) 9a    Admissibility: Right Of Confrontation: Admission Of Prior Testimony

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300.26 Confrontation Or Cross-Examination

Before prior testimony can be admitted, the prosecution must demonstrate that the declarant is unavailable.

Barber v. Page, 390 U.S. 719 (1968)
California v. Green, 399 U.S. 149 (1970)
Mancusi v. Stubbs, 408 U.S. 204 (1972)
Ohio v. Roberts, 448 U.S. 56 (1980)
United States v. Inadi, 475 U.S. 387 (1986)
FRE 804

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

Part V(A) 9b    Admissibility: Right Of Confrontation: Finding Of Unavailability Of Out-Of-Court Declarant

CAVEAT: See Publication Preface and Caveats.

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300.26 Confrontation Or Cross-Examination

An out-of-court declarant is not unavailable unless the prosecution has made a good faith but unsuccessful effort to obtain the declarant's presence at trial.

Barber v. Page, 39O U.S. 719 (1968)
California v. Green, 399 U.S. 149 (1970)
Mancusi v. Stubbs, 408 U.S. 204 (1972)
Ohio v. Roberts, 448 U.S. 56 (1980)
Lam v. Iowa, 860 F.2d 873 (8th Cir. 1988)

The declarant is unavailable if his or her absence was procured by the defendant.

Reynolds v. United States, 98 U.S. 244 (1879)

The declarant is unavailable if he or she is beyond the process of the court at the time of trial.

Mancusi v. Stubbs, 408 U.S. 204 (1972)

However, where the government released illegal alien witnesses at the border and failed to make adequate provision for their return, they were not unavailable.

United States v. Guadian-Salazar, 824 F.2d 344 (5th Cir. 1987)

The Confrontation Clause does not require a showing of unavailability as a condition for the admission of the out-of-court statements of a nontestifying coconspirator when those statements otherwise satisfy requirements of FRE 801(d)(2)(E).

United States v. Inadi, 475 U.S. 387 (1986)

The Confrontation Clause does not require the court to find that the declarant is unavailable in order to admit testimony under the spontaneous-declaration and medical-examination exceptions to the hearsay rule.

White v. Illinois, 502 U.S. 346 (1992)

An agency’s blanket policy of not allowing parole officers to travel outside their district to appear as witnesses at revocation hearings does not constitute good cause to deny confrontation.

Williams v. Johnson, 171 F.3d 300 (5th Cir. 1999)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

Part V(A) 9c    Admissibility: Right Of Confrontation: Proof Of Adequacy Of Indicia Of Reliability

CAVEAT: See Publication Preface and Caveats.

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300.26 Confrontation Or Cross-Examination

An unavailable declarant's out-of-court statement will be admissible only if the statement is marked by adequate indicia of reliability.

Smith v. Fairman, 862 F.2d 630 (7th Cir. 1988)
United States v. Candoli, 870 F.2d 496 (9th Cir. 1989)

The primary concern of the reliability inquiry must be to determine whether, under the circumstances, the unavailability of the declarant for cross-examination deprives the jury of a satisfactory basis for evaluating the truth of the declarant's out-of-court statement.

Means v. Wilson, 522 F.2d 833 (9th Cir. 1975)

To be admitted into evidence, an out-of-court statement must bear sufficient indication of reliability to provide the jurors with an adequate basis for evaluating the truth of the statement.

United States v. Nelson, 603 F.2d 42 (8th Cir. 1979)
United States v. McCormick, 54 F.3d 214 (5th Cir. 1995)
Miles v. Burris, 54 F.3d 284 (7th Cir. 1995)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

Part V(A) 9d    Admissibility: Right Of Confrontation: Admissibility Of Out-Of-Court Statements Within Exceptions To Hearsay Rule

CAVEAT: See Publication Preface and Caveats.

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300.15 Presence Of Defendant At Trial

Certain hearsay exceptions rest on such solid foundations that admission of virtually any evidence within them comports with the substance of the constitutional protection. Reliability can be inferred without more in a case in which the evidence falls within a firmly rooted hearsay exception. In other cases the evidence must be excluded, absent a showing of particularized guarantees of trustworthiness.

Ohio v. Roberts, 448 U.S. 56 (1980) (dying declarations and cross-examined, prior trial testimony are two hearsay exceptions so firmly rooted that their admission as out-of-court statements does not violate Confrontation Clause)
White v. Illinois, 502 U.S. 346 (1992) (spontaneous declarations and statements made for medical treatment)

The following have been identified as factors attesting to the reliability of a challenged out-of-court statement:

1. The statement carried on its face a warning to the jury against giving it undue weight.

2. The declarant was in a position to know the identity and role of the participants in the crime.

3. The possibility was remote that the statement was founded on faulty recollection.

4. It was not likely that the declarant misrepresented the defendant's involvement.

5. The statement was spontaneous.

Dutton v. Evans, 400 U.S. 74 (1970)

If the out-of-court statement does not fall within one of the "firmly rooted hearsay exceptions," there must be a case-by-case analysis to determine whether the right of confrontation is violated.

United States v. Medico, 557 F.2d 309 (2d Cir. 1977)
United States v. Iron Shell, 633 F.2d 77 (8th Cir. 1980)
Glenn v. Dallman, 635 F.2d 1183 (6th Cir. 1980)
Barker v. Morris, 761 F.2d 1396 (9th Cir. 1985)
 United States v. Chapman, 866 F.2d 1326 (11th Cir. 1989)
United States v. Gomez, 191 F.3d 1214 (10th Cir. 1999)

FRE 801 characterizes statements by coconspirators as exemptions from the hearsay rule.

An accomplice’s confession made during custodial interrogation does not fall within exceptions to the hearsay rule.

Lilly v. Virginia, 527 U.S. 116 (1999)

The fact that an extrajudicial declaration may be admissible under the FRE does not by itself establish compliance with the Confrontation Clause.

Ohio v. Roberts, 448 U.S. 56 (1980)
United States v. Candoli, 870 F.2d 496 (9th Cir. 1989)

The residual hearsay exception of FRE 804(b)(5) is not a firmly rooted hearsay exception. Thus, indicia of reliability sufficient to satisfy the Confrontation Clause must be demonstrated before evidence is admitted under this rule.

Barker v. Morris, 761 F.2d 1396 (9th Cir. 1985)
Hopkinson v. Shillinger, 866 F.2d 1185 (10th Cir. 1989), reh’g on other grounds, 888 F.2d 1286 (10th Cir. 1989)

Neither the Confrontation Clause nor FRE 802 is violated by the admission of a witness’s out-of-court identification state if the witness testifies at trial but is unable to recall the basis for his or her prior identification because of memory loss. It is not necessary to determine that the testimony of such a witness is also marked by "adequate indicia of reliability" if the witness is subject to unrestricted cross-examination at trial.

United States v. Owens, 484 U.S. 554 (1988)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

Part V(A) 9e    Admissibility: Right Of Confrontation: Coconspirator Statements Not Challenged By Right Of Confrontation

CAVEAT: See Publication Preface and Caveats.

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83.4.3 Hearsay Statements Of Coconspirator: Instructions

No inquiry concerning the Confrontation Clause need be made concerning a coconspirator's statement if evidence has established that the statement is in fact a coconspirator's statement.

United States v. Inadi, 475 U.S. 387 (1986)
Bourjaily v. United States, 483 U.S. 171 (1987)

See Part V. Evidence - Part V(A)1  [Admissibility: Coconspirator Statements].

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

Part V(A) 9f    Admissibility: Right Of Confrontation: Defendant's Right Of Confrontation Includes Right To Be Present At All Stages Of Trial

CAVEAT: See Publication Preface and Caveats.

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300.15 Presence Of Defendant At Trial

FRCRP 43 prohibits trial in absentia of a defendant who is not present at the beginning of trial. The rule's list of situations in which the trial may proceed without the defendant is exclusive.

Crosby v. United States, 506 U.S. 255 (1993)
See Taylor v. United States, 414 U.S. 17 (1973)

A judge must inquire into the reason for a defendant's absence and determine whether it constitutes a voluntary waiver of his or her right to be present.

United States v. Davis, 61 F.3d 291 (5th Cir. 1995)

When a defendant expresses a desire not to attend trial, the court must ensure that the defendant knows of the opportunity to attend and understands the ramifications of his or her choice not to attend so that the decision to waive the right will be intelligently made.

United States v. Nichols, 56 F.3d 403 (2d Cir. 1995)

It was error for a trial court to exclude a defendant from the courtroom while the court questioned deputy sheriffs, bailiffs, and jurors to determine whether an altercation in the courtroom might have prejudiced the defendant's right to a fair trial.

Blackwell v. Brewer, 562 F.2d 596 (8th Cir. 1977)

It was error for the trial court to exclude the accused from the taking of a deposition of a witness.

United States v. Benfield, 593 F.2d 815 (8th Cir. 1979)

The defendant has the right to be present during an in camera hearing regarding jury misconduct.

Nevels v. Parratt, 596 F.2d 344 (8th Cir. 1979)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

Part V(A) 9g    Admissibility: Right Of Confrontation: Placement Of Screen Between Defendant And Adverse Witness Violates Confrontation Clause

CAVEAT: See Publication Preface and Caveats.

Placement of a screen between the defendant and the witness testifying against him or her violates the Confrontation Clause. This clause guarantees a defendant the right to a face-to-face encounter with all witnesses testifying before the trier of fact.

Coy v. Iowa, 487 U.S. 1012 (1988)
But see Maryland v. Craig, 497 U.S. 836 (1990) (statute allowing one-way closed circuit testimony by a child witness doesn’t violate the Confrontation Clause if the state makes an adequate showing of necessity); United States v. Boyles, 57 F.3d 535 (7th Cir. 1995) (allowing a child to testify via videotape was proper where expert testimony indicated that the child would likely suffer emotional trauma if forced to testify in court); 18 U.S.C. § 3509(b)(1) and (2) (a child who is found unable to testify in open court in the presence of the defendant may testify by closed-circuit television or videotaped deposition)

See Part V(A) 9 [Admissibility: Right Of Confrontation: General Principles].

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

Part V(A) 9h    Admissibility: Right Of Confrontation: Effect Of Defendant's Voluntary Absence From Trial

CAVEAT: See Publication Preface and Caveats.

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18.2 Absence Of Defendant

18.3.5 Defendant Has Right To Instruction On Privilege Against Self Incrimination Even If Defendant Is Not Present During Trial

34.3.9 Failure To Appear For Trial Is Not Necessarily Flight

The defendant may waive his or her right of confrontation by voluntary absence from trial.

United States v. Peterson, 524 F.2d 167 (4th Cir. 1975)
United States v. Pastor, 557 F.2d 930 (2d Cir. 1977)
United States v. Powell, 611 F.2d 41 (4th Cir. 1979)
But see United States v. Camacho, 955 F.2d 950 (4th Cir. 1992)

If the defendant is absent, the court should try to find out where the defendant is and why he or she is absent. A statement by defense counsel that counsel does not know where the defendant is does not constitute waiver of the defendant's right to be present.

United States v. Rogers, 853 F.2d 249 (4th Cir. 1988)    

Even when a defendant is voluntarily absent from trial, the trial court should not proceed with the trial until it has weighed the factors favoring continuance of the trial against those favoring the presence of the defendant at the trial.

United States v. Peterson, 524 F.2d 167 (4th Cir. 1975)
United States v. Pastor, 557 F.2d 930 (2d Cir. 1977)
United States v. Benavides, 596 F.2d 137 (5th Cir. 1979)
See Clark v. Scott, 70 F.3d 386 (5th Cir. 1995) (balancing test not constitutionally required)

A judge must inquire into the reason for a defendant's absence and determine whether it constitutes a voluntary waiver of his or her right to be present.

United States v. Davis, 61 F.3d 291 (5th Cir. 1995)

When a defendant expresses a desire not to attend trial, the court must ensure that the defendant knows of the opportunity to attend and understands the ramifications of his or her choice not to attend so that the decision to waive the right will be intelligently made.

United States v. Nichols, 56 F.3d 403 (2d Cir. 1995)

In a single-defendant trial, proceeding without the defendant is ordinarily not proper.

United States v. Rogers, 853 F.2d 249 (4th Cir. 1988)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

Part V(A) 9i    Admissibility: Right Of Confrontation: Defendant Has Right To Be Present During Jury Selection

CAVEAT: See Publication Preface and Caveats.

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10.1.2 Jury Selection: Right Of Defendant To Be Present At All Phases Of Jury Selection Including Bench Or Sidebar Discussions

The defendant has the right to be present during selection of the jury and to participate in it. This right includes the right to be present during any in camera questioning of prospective jurors.

United States v. Alessandrello, 637 F.2d 131 (3d Cir. 1980)
United States v. Pappas, 639 F.2d 1 (1st Cir. 1980)

It is reversible error for the trial court to impanel the jury in the defendant's absence without a personal on-the-record waiver of his or her right to be present. A representation by defense counsel is not sufficient.

United States v. Gordon, 829 F.2d 119 (D.C. Cir. 1987)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

Part V(A) 9j    Admissibility: Right Of Confrontation: Effect Of Illness Of Defendant

CAVEAT: See Publication Preface and Caveats.

If a defendant becomes ill and cannot be present when witnesses are questioned, the court must adjourn the trial until the defendant can be present or, if it is a multiple-defendant trial, grant a severance to the ill defendant.

United States v. Toliver, 541 F.2d 958 (2d Cir. 1976)