Right to confront witnesses - Next Generation Bar Exam

1. Under Bruton v. United States, what is the effect of admitting a nontestifying codefendant's confession that names the defendant at a joint trial?

   It violates the defendant's confrontation right despite a limiting instruction. Under Samia v. United States, a redacted confession that avoids naming the defendant with a limiting instruction is generally permissible.

2. Under Ohio v. Clark, what is the status of a child's statements to a teacher about abuse?

   They are nontestimonial, because the primary purpose was to protect the child. Statements to persons other than law enforcement are much less likely to be testimonial.

3. Under Melendez-Diaz v. Massachusetts, what is the status of forensic lab certificates offered to prove a substance was cocaine?

   They are testimonial, so the analysts must be subject to cross-examination. Affidavits prepared for prosecution are core testimonial statements.

4. A 911 caller reports that her ex-husband is beating her at that moment and gives his name. She does not testify at trial. What is the status of her statement under the Confrontation Clause?

   It is nontestimonial and does not violate the Confrontation Clause. Under Davis, the primary purpose was to meet an ongoing emergency.

5. Under Crawford v. Washington, when does the Confrontation Clause bar admission of a hearsay statement?

   When it is testimonial and the declarant is unavailable and was not previously cross-examined by the defendant. Crawford rejected the reliability test of Ohio v. Roberts for testimonial statements.

6. Under Bullcoming v. New Mexico, what does the Confrontation Clause require when a forensic report certifies a test result?

   Testimony from the analyst who performed or certified the test, not a surrogate. A coworker who did not observe the test cannot satisfy the right.

7. Under Crawford v. Washington, what is the effect of the declarant's testimony at trial on the confrontation problem?

   It eliminates the problem, because the declarant is subject to cross-examination. The Clause does not bar the use of a testifying declarant's prior statements.

8. Under Davis v. Washington, when are statements to police during interrogation nontestimonial?

   When the primary purpose is to enable police to meet an ongoing emergency. Statements are testimonial when the primary purpose is to establish past events for later prosecution.

9. Under Hemphill v. New York, what is the effect of a defendant opening the door to otherwise inadmissible evidence on the confrontation right?

   It does not permit admission of testimonial hearsay without cross-examination. The trial court may not apply a state door-opening rule to override the Confrontation Clause.

10. Under Smith v. Arizona, what is the status of a substitute expert conveying an absent analyst's statements as the basis for the expert's opinion?

    The statements are offered for their truth if the opinion's value depends on their truth. If such statements are testimonial, the Confrontation Clause applies.

11. Under Giles v. California, when does a defendant forfeit the confrontation right through wrongdoing?

    When the defendant engaged in wrongdoing intended to prevent the witness from testifying. Causing the witness's unavailability without that intent is not enough.

12. Under Coy v. Iowa and Maryland v. Craig, when may a child witness testify by one-way closed-circuit television?

    When the court makes a case-specific finding that it is necessary to protect the child from trauma caused by the defendant's presence. A generalized legislative presumption of trauma is insufficient.

13. Under Michigan v. Bryant, what does a court consider in determining the primary purpose of an interrogation?

    The circumstances and the statements and actions of both the declarant and the interrogators, viewed objectively. The existence of an ongoing emergency is an important factor.

14. After a fight ends, police separate a woman from her husband and record her written account of the assault. She does not testify. What is the status of her statement under the Confrontation Clause?

    It is testimonial and inadmissible absent a prior opportunity for cross-examination. Under Hammon v. Indiana, decided with Davis, the primary purpose was to document past events.

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