Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Conceptually, the ongoing emergency exception (discussed above) places qualifying statements outside the Confrontation Clause, because they are not testimonial.1 With respect to testimonial statements, the Court has stated that the only exceptions to Confrontation Clause requirements are those “established at the time of the founding,” 2 and “acknowledged” two such exceptions.3 The first Confrontation Clause exception encompasses dying declarations— “declarations made by a speaker who was both on the brink of death and aware that he was dying.” 4 The second exception involves statements subject to “forfeiture by wrongdoing.” 5 It permits “the introduction of statements of a witness who was ‘detained’ or ‘kept away’ by the ‘means or procurement’ of the defendant.” 6 The forfeiture by wrongdoing exception applies only to “deliberate witness tampering” where “the defendant engaged in conduct designed to prevent the witness from testifying.” 7 In Giles v. California,8 the Court examined the limits of this exception, and rejected its applicability to statements made by a victim to police three weeks before she was killed by the defendant (who claimed self-defense at trial).9 The Court concluded that the defendant did not forfeit his right to confront the witness’s statements even though she was “unavailable to testify” as a result of her “murder for which [the defendant] was on trial,” absent evidence that the defendant “intended to prevent [her] from testifying.” 10

Footnotes

1

Davis v. Washington, 547 U.S. 813, 822 (2006).

2

Giles v. California, 554 U.S. 353, 358 (2008) (quoting Crawford v. Washington, 541 U.S. 36, 54 (2004)).

3

Id. In Hemphill v. New York, the Supreme Court rejected a New York state evidentiary rule that permitted admission of evidence otherwise barred by the Confrontation Clause in order to correct a misleading impression created by the defendant, where the state conceded that its evidentiary rule was not “an exception to the right to confrontation at common law.” No. 20-637, slip op. at 9 (U.S. Jan. 20, 2022).

4

Giles, 554 U.S. at 358.

5

Id. at 359.

6

Id.

7

Id. at 359, 366.

8

554 U.S. 353 (2008).

9

Id. at 356, 377.

10

Id. at 357, 361.