Amendment 6 — Admissibility Of Testimonial Statements

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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.

In the years following Ohio v. Roberts,[1](https://www.law.cornell.edu/constitution-conan/amendment-6/admissibility-of-testimonial-statements#fn1amd6 " 448 U.S. 56 (1980), abrogated by Crawford v. Washington, 541 U.S. 36 (2004). ") the Supreme Court applied, revisited, and narrowed the Confrontation Clause standard that Roberts had set forth,[2](https://www.law.cornell.edu/constitution-conan/amendment-6/admissibility-of-testimonial-statements#fn2amd6 " See Lilly v. Virginia, 527 U.S. 116, 133 (1999) ( “[O]ur cases consistently have viewed an accomplice’s statements that shift or spread the blame to a criminal defendant as falling outside the realm of” reliable hearsay exceptions); White v. Illinois, 502 U.S. 346, 354 (1992) (holding that unavailability “is a necessary part of the Confrontation Clause inquiry only when the challenged out-of-court statements were made in the course of a prior judicial proceeding” ); Idaho v. Wright, 497 U.S. 805, 827 (1990) (determining that the out-of-court statements of a child to an examining pediatrician were insufficiently reliable under Roberts when admitted under a state’s residual hearsay exception); United States v. Inadi, 475 U.S. 387, 394, 400 (1986) (affirming “the validity of the use of co-conspirator statements” and rejecting a broad reading of Roberts that would prohibit introduction by the government of any such “out-of-court statement[s]” absent “a showing that the declarant is unavailable” ); Lee v. Illinois, 476 U.S. 530, 546 (1986) (concluding that a codefendant confession was insufficiently reliable “to overcome the weighty presumption against the admission of such uncross-examined evidence,” although its content largely “interlocked” or overlapped with the defendant’s own confession). ") which generally permitted the admission of out-of-court statements only if the declarant was unavailable and the statement was sufficiently reliable.[3](https://www.law.cornell.edu/constitution-conan/amendment-6/admissibility-of-testimonial-statements#fn3amd6 " Roberts, 448 U.S. at 66. ") In 2004 the Court in Crawford v. Washington[4](https://www.law.cornell.edu/constitution-conan/amendment-6/admissibility-of-testimonial-statements#fn4amd6 " 541 U.S. 36 (2004). ") overruled Roberts and introduced a new standard for determining whether an out-of-court statement implicates the Confrontation Clause.[5](https://www.law.cornell.edu/constitution-conan/amendment-6/admissibility-of-testimonial-statements#fn5amd6 " Id. at 54, 60. In a subsequent opinion, the Court held that Crawford is not “retroactive to cases already final on direct review.” Whorton v. Bockting, 549 U.S. 406, 409 (2007). ")

Under Crawford, the key to whether evidence implicates the Confrontation Clause is not its reliability, but rather whether it is testimonial.[6](https://www.law.cornell.edu/constitution-conan/amendment-6/admissibility-of-testimonial-statements#fn6amd6 " Crawford, 541 U.S. at 51; see also Hemphill v. New York, No. 20-637, slip op. at 10–11 (U.S. Jan. 20, 2022) (explaining that if “Crawford stands for anything, it is that the history, text, and purpose of the Confrontation Clause bar judges from substituting their own determinations of reliability for the method the Constitution guarantees” -cross-examination). ") Pursuant to Crawford, non-testimonial evidence does not implicate the Confrontation Clause.[7](https://www.law.cornell.edu/constitution-conan/amendment-6/admissibility-of-testimonial-statements#fn7amd6 " Crawford, 541 U.S. at 68. ") In contrast, testimonial evidence may only be admitted consistently with the Confrontation Clause in limited circumstances.[8](https://www.law.cornell.edu/constitution-conan/amendment-6/admissibility-of-testimonial-statements#fn8amd6 " Id. at 68–69. ") Testimonial evidence may be admitted if the declarant: is available at trial for cross examination,[9](https://www.law.cornell.edu/constitution-conan/amendment-6/admissibility-of-testimonial-statements#fn9amd6 " Id. ") or is unavailable but the defendant previously had opportunity to cross-examine the declarant about the statement.[10](https://www.law.cornell.edu/constitution-conan/amendment-6/admissibility-of-testimonial-statements#fn10amd6 " Id. Further, Crawford “does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.” Id. at 59 n.9. ") The Court in Crawford also recognized the existence of two common law Confrontation Clause exceptions that historically permitted the admission of testimonial statements[11](https://www.law.cornell.edu/constitution-conan/amendment-6/admissibility-of-testimonial-statements#fn11amd6 " The two potential exceptions—dying declarations and forfeiture by wrongdoing—are discussed in . ") —but it did not expressly approve or disapprove of either.[12](https://www.law.cornell.edu/constitution-conan/amendment-6/admissibility-of-testimonial-statements#fn12amd6 " Crawford, 541 U.S. at 56, n.6, 62 (recognizing the dying declarations and forfeiture by wrongdoing exceptions to the Confrontation Clause but declining to expressly adopt either). ")

The Crawford Court expressly declined to provide a “comprehensive definition” of “testimonial.” [13](https://www.law.cornell.edu/constitution-conan/amendment-6/admissibility-of-testimonial-statements#fn13amd6 " See id. at 68 ( “We leave for another day any effort to spell out a comprehensive definition of ‘testimonial.’” ). ") However, drawing from a variety of sources, the Court offered several possible formulations of “core” testimonial statements, including “ex parte in-court testimony or its functional equivalent” such as “affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially.” [14](https://www.law.cornell.edu/constitution-conan/amendment-6/admissibility-of-testimonial-statements#fn14amd6 " Id. at 51 (citations omitted), cited with approval in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310 (2009). ") As additional possible formulations of “testimonial,” the Court listed “extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,” and “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” [15](https://www.law.cornell.edu/constitution-conan/amendment-6/admissibility-of-testimonial-statements#fn15amd6 " Id. at 52 (citations omitted), cited with approval in Melendez-Diaz, 557 U.S. at 310. ") Regardless of the exact formulation of “testimonial” the Court in Crawford specified that at a minimum, “testimonial” includes police interrogations and “prior testimony at a preliminary hearing, before a grand jury, or at a former trial.” [16](https://www.law.cornell.edu/constitution-conan/amendment-6/admissibility-of-testimonial-statements#fn16amd6 " Id. at 68. ")

In subsequent opinions, the Court has further examined what it means for evidence to be “testimonial” for Confrontation Clause purposes-particularly in the context of forensic laboratory reports and analysis. For example, in Melendez-Diaz v. Massachusetts[17](https://www.law.cornell.edu/constitution-conan/amendment-6/admissibility-of-testimonial-statements#fn17amd6 " 557 U.S. 305 (2009). ") the Court held that the admission of forensic lab analysts’ affidavits—reporting that material seized from the defendant was cocaine-violated the Confrontation Clause because affidavits were testimonial and the “analysts were ‘witnesses’ for purposes of the Sixth Amendment .” [18](https://www.law.cornell.edu/constitution-conan/amendment-6/admissibility-of-testimonial-statements#fn18amd6 " Id. at 308, 311. ") In Bullcoming v. New Mexico[19](https://www.law.cornell.edu/constitution-conan/amendment-6/admissibility-of-testimonial-statements#fn19amd6 " 564 U.S. 647 (2011). ") the Court clarified that when the government seeks to introduce laboratory reports containing testimonial certifications “made for the purpose of proving a particular fact,” the “accused’s right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist.” [20](https://www.law.cornell.edu/constitution-conan/amendment-6/admissibility-of-testimonial-statements#fn20amd6 " Id. at 652. ") Testimony by a surrogate witness who is familiar with general laboratory procedures, but otherwise uninvolved in the relevant certification, is insufficient to satisfy a defendant’s constitutional right.[21](https://www.law.cornell.edu/constitution-conan/amendment-6/admissibility-of-testimonial-statements#fn21amd6 " Id. ") Likewise, testimony by a surrogate witness that relies on conclusions from a report prepared by an out-of-court witness will not satisfy the Confrontation Clause.[22](https://www.law.cornell.edu/constitution-conan/amendment-6/admissibility-of-testimonial-statements#fn22amd6 " Smith v. Arizona, No. 22-899, slip op. at 21 (U.S. June 21, 2024). The Court’s decision in Smith did not determine whether or not the statements at issue were testimonial. See id. at 19. ")

In its 2012 opinion Williams v. Illinois,[23](https://www.law.cornell.edu/constitution-conan/amendment-6/admissibility-of-testimonial-statements#fn23amd6 " 567 U.S. 50 (2012) (plurality opinion). ") the Court again revisited the relationship between the Confrontation Clause and laboratory analysis.[24](https://www.law.cornell.edu/constitution-conan/amendment-6/admissibility-of-testimonial-statements#fn24amd6 " <span class="cite cite-type-case" full="Williams v. Illino