confrontation clause in Tennessee

2021Because the Confrontation Clause does not bar nontestimonial hearsay, see Davis v. Washington, 547 U.S. 813, 823-24 (2006); Whorton v. Bockting, 549 U.S. 406, 420 (2007), “the threshold question in every case where the Confrontation Clause is relied upon as a bar to the admission of an out-of-court statement is whether the challenged statement is testimonial.” Dotson, 450 S.W.3d at 63 (citing Cannon, 254 S.W.3d at 301 ). -27- The Crawford court identified, for illustrative purposes, a “core class of ‘testimonial’ statements”: “ex parte in-court testimony or its functional equivalent—that is, m

2016In this regard, our Supreme Court has determined: When the prosecution seeks to introduce a declarant‟s out-of-court statement, and a defendant raises a Confrontation Clause objection, the initial determination under Crawford [v. Washington, 541 U.S. 36, 68 (2004)] is whether the statement is testimonial or nontestimonial.

2025More importantly, however, the Supreme Court has stated that “the Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits.” Id. at 329 ; California v. Green, 399 U.S. 149 , 156–57 (1970) (stating that “the - 16 - particular vice that gave impetus to the confrontation claim was the practice of trying defendants on ‘evidence’ which consisted solely of ex parte affidavits or depositions . . . , thus denying the defendant the opportunity to challenge his accuser in a face-to-face encounter in front of the trier of fact”).

2013Indeed, “the particular vice that gave impetus to the confrontation claim was the practice of trying defendants on ‘evidence’ which consisted solely of ex parte affidavits or depositions secured by the examining magistrates, thus denying the defendant the opportunity to challenge his accuser in a face-to-face encounter in front of the trier of fact.” California v. Green, 399 U.S. 149, 156 (1970) (emphasis added).

2025More importantly, however, the Supreme Court has stated that “the Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits.” Id. at 329 ; California v. Green, 399 U.S. 149 , 156–57 (1970) (stating that “the - 16 - particular vice that gave impetus to the confrontation claim was the practice of trying defendants on ‘evidence’ which consisted solely of ex parte affidavits or depositions . . . , thus denying the defendant the opportunity to challenge his accuser in a face-to-face encounter in front of the trier of fact”).

2015In Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), the Court concluded that “affidavits reporting the results of forensic analysis which showed that material seized by the police and connected to the defendant was cocaine” were testimonial and subject to exclusion under the Confrontation Clause analysis.

2014Therefore, the right to confront witnesses is satisfied if defense counsel receives wide latitude at trial to cross-examine, because the confrontation clause only guarantees “an opportunity for effective 38 cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Id. (quoting Delaware v. Fensterer, 474 U.S. 15, 20 , 106 S.Ct. 292, 294 , 88 L.Ed.2d 15, 19 (1985)).

1992Therefore, the right to confront witnesses is satisfied if defense counsel receives wide latitude at trial to cross- examine, because the confrontation clause only guarantees “an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Id. (quoting Delaware v. Fensterer, 474 U.S. 15, 20 , 106 S.Ct. 292, 294 , 88 L.Ed.2d 15, 19 (1985)).

2011As our supreme court has observed, “the right to confront witnesses is satisfied if defense counsel receives wide latitude at trial to cross-examine, because the confrontation clause only guarantees ‘an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense may wish.’” State v. Middlebrooks, 840 S.W.2d 317, 332-33 (Tenn. 1992), superceded by statute on other grounds as stated in State v. Stout, 46 S.W.3d 689, 705 (Tenn. 2001).

2010As our supreme court has observed, “the right to confront witnesses is satisfied if defense counsel receives wide latitude at trial to cross-examine, because the confrontation clause only guarantees ‘an -12- opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense may wish.’” State v. Middlebrooks, 840 S.W.2d 317, 332-33 (Tenn. 1992), superceded by statute on other grounds as stated in State v. Stout, 46 S.W.3d 689, 705 (Tenn. 2001).

2022Because the Confrontation Clause does not bar nontestimonial hearsay, see Davis v. Washington, 547 U.S. 813 , 823- 24 (2006); Whorton v. Bockting, 549 U.S. 406, 420 (2007), “the threshold question in every case where the Confrontation Clause is relied upon as a bar to the admission of an out-of- -21- court statement is whether the challenged statement is testimonial.” Dotson, 450 S.W.3d at 63 (citing Cannon, 254 S.W.3d at 301 ).

2021Because the Confrontation Clause does not bar nontestimonial hearsay, see Davis v. Washington, 547 U.S. 813, 823-24 (2006); Whorton v. Bockting, 549 U.S. 406, 420 (2007), “the threshold question in every case where the Confrontation Clause is relied upon as a bar to the admission of an out-of-court statement is whether the challenged statement is testimonial.” Dotson, 450 S.W.3d at 63 (citing Cannon, 254 S.W.3d at 301 ). -27- The Crawford court identified, for illustrative purposes, a “core class of ‘testimonial’ statements”: “ex parte in-court testimony or its functional equivalent—that is, m

2022Because the Confrontation Clause does not bar nontestimonial hearsay, see Davis v. Washington, 547 U.S. 813 , 823- 24 (2006); Whorton v. Bockting, 549 U.S. 406, 420 (2007), “the threshold question in every case where the Confrontation Clause is relied upon as a bar to the admission of an out-of- -21- court statement is whether the challenged statement is testimonial.” Dotson, 450 S.W.3d at 63 (citing Cannon, 254 S.W.3d at 301 ).

2021Because the Confrontation Clause does not bar nontestimonial hearsay, see Davis v. Washington, 547 U.S. 813, 823-24 (2006); Whorton v. Bockting, 549 U.S. 406, 420 (2007), “the threshold question in every case where the Confrontation Clause is relied upon as a bar to the admission of an out-of-court statement is whether the challenged statement is testimonial.” Dotson, 450 S.W.3d at 63 (citing Cannon, 254 S.W.3d at 301 ). -27- The Crawford court identified, for illustrative purposes, a “core class of ‘testimonial’ statements”: “ex parte in-court testimony or its functional equivalent—that is, m

2013See Ohio v. Roberts, 448 U.S. 56, 74 (1980) (quoting Barber v. Page, 390 U.S. 719,724-25 (1968) (“The basic litmus of Sixth Amendment unavailability is established: ‘[A] witness is not ‘unavailable’ for purposes of . . . the exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial.’” (emphasis added)).

2010Before Crawford established "testimonial hearsay,” unavailability, and a prior opportunity to cross-examine as the touchstones of Confrontation Clause analysis, the hearsay statement of an unavailable declarant would be admissible where the statement had "adequate 'indicia of reliability.’ ” Ohio v. Roberts, 448 U.S. 56, 66 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980).

2022“Accordingly, since Crawford, federal and state courts alike have found no Confrontation Clause violation where the out-of-court statement—whether testimonial or not—was admitted for some purpose other than the truth of the matter asserted.” Id.; see State v. Dotson, 450 S.W.3d 1, 64 (Tenn. 2014) (“Furthermore, the Crawford Court explained that the Confrontation Clause is not violated when testimonial statements are admitted for purposes other than establishing the truth of the matter asserted.”).

2022Because the Confrontation Clause does not bar nontestimonial hearsay, see Davis v. Washington, 547 U.S. 813 , 823- 24 (2006); Whorton v. Bockting, 549 U.S. 406, 420 (2007), “the threshold question in every case where the Confrontation Clause is relied upon as a bar to the admission of an out-of- -21- court statement is whether the challenged statement is testimonial.” Dotson, 450 S.W.3d at 63 (citing Cannon, 254 S.W.3d at 301 ).

2010Whether the Statement Is Testimonial Having determined that the contractor’s statement was indeed hearsay, we now turn to the “threshold question” of Confrontation Clause analysis: whether the statement is “testimonial.” See United States v. Hinton, 423 F.3d 355, 358 (3d Cir.2005).

2006The statements in 7 See United States v. Hinton, 423 F.3d 355, 358 (3rd Cir. 2005) (stating that “[t]he threshold question in any Confrontation Clause analysis . . . is whether the statement is testimonial.”) 8 One commentator suggests that for statements determined to be nontestimonial, it is still prudent to apply the Ohio v. Roberts analysis when determining admissibility.

2022Because the Confrontation Clause does not bar nontestimonial hearsay, see Davis v. Washington, 547 U.S. 813 , 823- 24 (2006); Whorton v. Bockting, 549 U.S. 406, 420 (2007), “the threshold question in every case where the Confrontation Clause is relied upon as a bar to the admission of an out-of- -21- court statement is whether the challenged statement is testimonial.” Dotson, 450 S.W.3d at 63 (citing Cannon, 254 S.W.3d at 301 ).

2021Because the Confrontation Clause does not bar nontestimonial hearsay, see Davis v. Washington, 547 U.S. 813, 823-24 (2006); Whorton v. Bockting, 549 U.S. 406, 420 (2007), “the threshold question in every case where the Confrontation Clause is relied upon as a bar to the admission of an out-of-court statement is whether the challenged statement is testimonial.” Dotson, 450 S.W.3d at 63 (citing Cannon, 254 S.W.3d at 301 ). -27- The Crawford court identified, for illustrative purposes, a “core class of ‘testimonial’ statements”: “ex parte in-court testimony or its functional equivalent—that is, m

2019“Thus, the threshold issue for an alleged confrontation clause violation is ‘whether a challenged statement is testimonial or nontestimonial.’” State v. Parker, 350 S.W.3d 883, 898 (Tenn. 2011) (quoting Maclin, 183 S.W.3d at 345 ).

2014“Thus, the threshold issue for an alleged confrontation clause violation is ‘whether a challenged statement is testimonial or nontestimonial.’” State v. Parker, 350 S.W.3d 883, 898 (Tenn. 2011) (quoting Maclin, 183 S.W.3d at 345 ).2 Examining the historical origins of the right, Crawford defined “testimony” as “[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.” 541 U.S. at 51 (internal quotation and citation omitted).

2015In his concurring opinion, Justice Breyer recognized that “[a]utopsies, like the DNA report in this case, are often conducted when it is not yet clear whether there is a particular suspect or whether the facts surrounding the autopsy will ultimately prove relevant in a criminal trial.” Id. at 2251 (Breyer, J. concurring). - 27 - Justice Thomas, though providing the fifth vote, rejected the “primary target” rationale and held that the confrontation clause was implicated when the out-of-court statement possessed sufficient “indicia of solemnity.” Id. at 2259 (Thomas, J., concurring in the judgme

2015In his concurring opinion, Justice Breyer recognized that “[a]utopsies, like the DNA report in this case, are often conducted when it is not yet clear whether there is a particular suspect or whether the facts surrounding the autopsy will ultimately prove relevant in a criminal trial.” Id. at 2251 (Breyer, J. concurring). - 27 - Justice Thomas, though providing the fifth vote, rejected the “primary target” rationale and held that the confrontation clause was implicated when the out-of-court statement possessed sufficient “indicia of solemnity.” Id. at 2259 (Thomas, J., concurring in the judgme

2026And if those statements are testimonial too . . . the Confrontation Clause will bar their admission.” Id. at 783 .

2025See id. at 798 ; see also United States v. Seward, 135 F.4th 161 , 168–69 (4th Cir. 2025) (finding Confrontation Clause violation when substitute DNA analyst “relied on the work produced by another analyst to reach her expert conclusions (citing Smith, 602 U.S. at 798 )).

2022App. June 14, 2013) (quoting Wade, 863 S.W.2d at 408 ).

2022App. June 14, 2013) (quoting Wade, 863 S.W.2d at 408 ).

2021Idaho v. Wright, 497 U.S. 805, 814 (1990).

2019Idaho v. Wright, 497 U.S. 805, 814 (1990).

2014State v. Armes, 607 S.W.2d 234, 237 (Tenn. 1980).

1986In State v. Henderson, 554 S.W.2d 117 (Tenn.1977) and State v. Armes, 607 S.W.2d 234 (Tenn.1980) a third requirement for complying with the confrontation clause was applied — that the evidence not be crucial nor devastating.

2014Therefore, the right to confront witnesses is satisfied if defense counsel receives wide latitude at trial to cross-examine, because the confrontation clause only guarantees “an opportunity for effective 38 cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Id. (quoting Delaware v. Fensterer, 474 U.S. 15, 20 , 106 S.Ct. 292, 294 , 88 L.Ed.2d 15, 19 (1985)).

2014Therefore, the right to confront witnesses is satisfied if defense counsel receives wide latitude at trial to cross-examine, because the confrontation clause only guarantees “an opportunity for effective 38 cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Id. (quoting Delaware v. Fensterer, 474 U.S. 15, 20 , 106 S.Ct. 292, 294 , 88 L.Ed.2d 15, 19 (1985)).

2012Our Supreme Court addressed this issue in State v. Stephenson, 195 S.W.3d 574 (Tenn. 2006), concluding that the Confrontation Clause did not bar the admission of hearsay evidence during sentencing.

2012Id. at 591 .

2009We must next consider whether consideration of the Confrontation Clause error is “necessary to do substantial justice.” In doing so, we note that “[a]lthough very similar to harmless error analysis, plain error review places on the defendant the burden of persuasion, whereas the State bears the burden of persuasion when an appellate court conducts a harmless error analysis.” State v. Gomez, 163 S.W.3d 632, 646 (Tenn. 2005), rev’d on other grounds, (citing United States v. Olano, 507 U.S. 725, 732 (1993)).

2009We must next consider whether consideration of the Confrontation Clause error is “necessary to do substantial justice.” In doing so, we note that “[a]lthough very similar to harmless error analysis, plain error review places on the defendant the burden of persuasion, whereas the State bears the burden of persuasion when an appellate court conducts a harmless error analysis.” State v. Gomez, 163 S.W.3d 632, 646 (Tenn. 2005), rev’d on other grounds, (citing United States v. Olano, 507 U.S. 725, 732 (1993)).

2019“Thus, the threshold issue for an alleged confrontation clause violation is ‘whether a challenged statement is testimonial or nontestimonial.’” State v. Parker, 350 S.W.3d 883, 898 (Tenn. 2011) (quoting Maclin, 183 S.W.3d at 345 ).

2014“Thus, the threshold issue for an alleged confrontation clause violation is ‘whether a challenged statement is testimonial or nontestimonial.’” State v. Parker, 350 S.W.3d 883, 898 (Tenn. 2011) (quoting Maclin, 183 S.W.3d at 345 ).2 Examining the historical origins of the right, Crawford defined “testimony” as “[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.” 541 U.S. at 51 (internal quotation and citation omitted).

2018We have also considered State v. Dean, 76 S.W.3d 352, 365 (Tenn. Crim.

2018See id.

2010Indeed, in White v. Illinois, 502 U.S. 346, 354 , 112 S.Ct. 736, 741 (1992), the Court held that Ohio v. Roberts stands for the proposition that unavailability analysis 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.

2010Indeed, in White v. Illinois, 502 U.S. 346, 354 , 112 S.Ct. 736, 741 (1992), the Court held that Ohio v. Roberts stands for the proposition that unavailability analysis 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.

1986The intermediate court held that the trial court's admission of the report of laboratory test results through the testimony of a witness other than the technician who conducted the test, violated defendant’s constitutional right of confrontation; that the presence of the technician in court in response to defendant’s subpoena, did not cure the confrontation violation, relying upon State v. Henderson, supra. The only testimony adduced in the circuit court proceeding was that of Sergeant Ted Boyd of the Loretto, Tennessee Police Department who recounted the following set of facts.

1986This case brings into focus a conflict between the court’s decisions in State v. Robbins, supra and State v. Henderson, supra and requires that we directly confront the issue of whether T.C.A. § 55-10-410(d) violates the confrontation clause, Article I, section 9 of the Tennessee Constitution and the Sixth Amendment of the United States Constitution.

2014Crawford, 541 U.S. at 59 n. 9, 124 S.Ct. 1354 ; accord State v. Franklin, 308 S.W.3d at 808 -811 (citing state and federal decisions which found no Confrontation Clause violation where the out-of-court statement — whether testimonial or not — was admitted for some purpose other than the truth of the matter asserted).

2014Crawford, 541 U.S. at 59 n.9; accord State v. Franklin, 308 S.W.3d at 808 -811 (citing state and federal decisions which found no Confrontation Clause violation where the out-of-court statement—whether testimonial or not—was admitted for some purpose other than the truth of the matter asserted). -67- Since Crawford, the Supreme Court has still not “attempt[ed] to produce an exhaustive classification of all conceivable statements—or even all conceivable statements in response to police interrogation—as either testimonial or nontestimonial . . . .” Davis, 547 U.S. at 822 .

2020Although Christopher Terrell Shipp only addressed an alleged Confrontation Clause violation, we believe the opinion still has precedential value to a due process claim because, as we have stated previously in this opinion, “[t]he right[] to confront and cross-examine witnesses [has] long been recognized as essential to due process.” Chambers, 410 U.S. at 294 .

2020Although Christopher Terrell Shipp only addressed an alleged Confrontation Clause violation, we believe the opinion still has precedential value to a due process claim because, as we have stated previously in this opinion, “[t]he right[] to confront and cross-examine witnesses [has] long been recognized as essential to due process.” Chambers, 410 U.S. at 294 .