The Sixth Amendment says that in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.

If the statement is not hearsay (it was not admitted for the truth of the matter asserted), it does not violate the Confrontation Clause. Tennessee v. Street.

This right is preserved if one had the ability to fully cross-examine the testimony at a previous trial. A preliminary hearing is not enough.

Previous testimony is allowed if the declarant is also testifying now.

If one makes a witness unavailable, he forfeits his right to confrontation.

A dying declaration is allowed despite the Confrontation Clause.

Ohio v. Roberts allowed testimony if it is reliable and necessary. This was overruled with the testimonial standard in Crawford v. Washington, but that standard has since been brought back in as factors in that test.


Hearsay complies with the Confrontation Clause if its primary purpose is not testimonial under the totality of the circumstances.

Testimonial basically means it is intended to preserve the testimony at trial or to convict the guy.

The purpose is still whether it is reliable, so sometimes courts will just allow it if it is reliable, even if it is testimonial. They will just say that reliability is a factor in whether or not it is testimonial, so if it is reliable, it is not testimonial.

Long-standing hearsay exceptions are indicative of reliability.

Justices' Views

It is testimonial if there is solemnity. (If it was sworn testimony.)


Reliability is an important factor. (The plurality viewpoint.)

We don't have to know cuz Gorsuch and Kavanaugh.

Factors for Hearsay Being Testimonial
  1. Statement “describes past events,” rather than “events as they were actually happening.” (Bryant, p. 629, quoting Davis).
  2. There was no ongoing emergency (Bryant, p. 629) taking into account factors such as:
    1. The nature of the assault – domestic, known or stranger (greater familiarity between victim and assailant, less likelihood of ongoing emergency).
    2. The weapon used (greater ability to harm others, greater likelihood of emergency), Bryant, pp. 632-633; and
    3. Whether the assailant remained at large – if yes, greater possibility of ongoing emergency, Bryant, p. 632.
  3. The statement was needed to determine “what happened,” not to “resolve the present emergency” (Bryant, pp. 629-630 (quoting Davis)).
  4. The statement was “procured with a primary purpose of creating an out-of-court substitute for trial testimony.” Bryant, p. 630.
  5. The statement did “precisely what a witness does on direct examination,” Bullcoming, p. 649 and Melendez-Diaz;
  6. The statement bore an indicia of “formality,” such as:
    1. Being taken in calm circumstances when the declarant is out of danger. Bryant, pp. 630, 633.
    2. Statement is made while declarant is separated from the suspect. Bryant, p. 630.
    3. Statement taken in the stationhouse rather than at crime scene. Bryant, pp. 631, 633.
    4. Statement taken when defendant in custody and following Miranda. Crawford, pp. 594-5, 605.
    5. Statement is being recorded by police interrogator. Crawford, p. 601, n. 4. But also note that 911 calls are often NOT testimonial.
    6. The interrogation involved a “structured” series of questions. Crawford, p. 601, n. 4. But also note that 911 calls often include structured questions but often are NOT testimonial.

A child can be questioned by just the lawyer and be in court by video if it is found he could not handle being questioned in court.

Kline has an 8-step test:

  1. Is it a criminal case?
  2. Is it against a criminal defendant?
  3. Is it 801(a)–(c) hearsay?
  4. Was there not a prior full opportunity to cross?
  5. Is the defendant in the courtroom?
  6. Is there not forfeiture?
  7. Was the past statement not a dying declaration?
  8. Was the statement testimonial?

If all eight are yes, then the testimony is excluded by the Confrontation Clause.