Confrontation Clause After 'Michigan v. Bryant' and 'Bullcoming v. New Mexico' [September 13, 2011]   [open pdf - 291KB]

"The Sixth Amendment to the United States Constitution includes the guarantee that '[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.' Historically, the U.S. Supreme Court interpreted the Confrontation Clause as being more or less compatible with evidentiary rules governing out-of-court statements. In 1979, in 'Ohio v. Roberts', 448 U.S. 56, the Court expressed the view that evidence that fit within a hearsay exception or had analogous 'particularized guarantees of trustworthiness' would also 'comport with the substance' of the Confrontation Clause; hearsay rules and the Confrontation Clause were generally designed to protect similar values and stemmed from the same roots. […] In the U.S. Supreme Court's 2010-2011 term, two cases were handed down which are significant post-'Crawford' interpretations of the Clause. One case, 'Michigan v. Bryant', 131 S. Ct. 1143 (2011), held that admitting into evidence a dying man's statements to police officers about his assailant did not violate the Confrontation Clause--not through the 'dying declaration' exception to hearsay, but because they were made to assist law enforcement officers in an 'ongoing emergency' and were therefore 'nontestimonial.' The other, 'Bullcoming v. New Mexico', 131 S. Ct. 2705 (2011), addressed the prosecution's use of forensic laboratory reports. It concluded that the Confrontation Clause requires the laboratory analyst who performed the test to appear at trial and confront the defendant in person. This report examines these decisions in the context of the Court's relatively new Confrontation Clause jurisprudence. It considers their implications for admissibility of evidence in criminal prosecutions."

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CRS Report for Congress, R41996
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