Quick Tip: Hearsay and the Confrontation Clause

Tommy Sangchompuphen
Jun 17
2 min read

In previous posts, I've covered the three core steps for analyzing hearsay on the bar exam:

But for criminal cases, there’s one more crucial consideration—even if the evidence fits a hearsay exception, it might still be inadmissible under the Sixth Amendment's Confrontation Clause. That’s why we’re wrapping up this four-part hearsay series with a final post on this constitutional safeguard.

What is the Confrontation Clause?

The Sixth Amendment guarantees a criminal defendant the right "to be confronted with the witnesses against him." Under the Supreme Court’s ruling in Crawford v. Washington (2004), this means that the prosecution cannot offer testimonial hearsay against a criminal defendant unless two conditions are met:

The declarant is unavailable, and
The defendant had a prior opportunity to cross-examine the declarant about the statement.

If either of these conditions is missing, then introducing the testimonial statement violates the Confrontation Clause.

Let’s walk through it:

1️⃣ Step 1: Is the case criminal?

If not, the Confrontation Clause doesn’t apply. This is a Sixth Amendment right that protects criminal defendants only.

2️⃣ Step 2: Does the hearsay rule allow the statement?

If the statement isn’t admissible under the hearsay rules, you don’t even get to the Confrontation Clause. Start with the traditional hearsay analysis (i.e., Does the statement meet the definition of hearsay? Does a hearsay exclusion apply? Does a hearsay exception apply?).

3️⃣ Step 3: Is the statement being offered against the defendant?

The right to confront applies to statements offered against the defendant, not by or in favor of the defense.

4️⃣ Step 4: Is the declarant unavailable?

Just like Rule 804, this means the declarant is exempt due to privilege, refuses to testify, lacks memory, is ill or deceased, or cannot be located despite reasonable efforts.

5️⃣ Step 5: Is the statement testimonial in nature?

This is often the most confusing part. Testimonial statements are those made during formal police interrogations, sworn statements, affidavits, prior testimony, or forensic reports prepared for trial. Non-testimonial statements include those made in the course of an ongoing emergency, casual conversations, or statements not primarily intended to be used at trial.

6️⃣ Step 6: Was there a prior opportunity to cross-examine the declarant?

If the defendant didn’t get to cross the declarant about that testimonial statement—either in this trial or a prior proceeding—the statement is excluded.

The Confrontation Clause serves as a powerful constitutional backstop in criminal trials. While hearsay rules determine whether a statement is generally admissible, the Confrontation Clause may still override that admissibility when a testimonial statement is involved. For bar exam purposes, this means you must be ready to apply both applicable rules and constitutional safeguards.

See also: