confrontation clause in New Jersey

2022In Crawford v. Washington, the United States Supreme Court held that the framers of the Constitution intended the Confrontation Clause to bar the admission of “testimonial statements of a witness who did not appear at trial unless [the declarant is] unavailable to testify, and the defendant had . . . a prior opportunity for cross-examination.” 541 U.S. 36, 53-54 (2004). “[T]he Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Delaware v. Fensterer, 474 U.S. 15

2022In Crawford v. Washington, the United States Supreme Court held that the framers of the Constitution intended the Confrontation Clause to bar the admission of “testimonial statements of a witness who did not appear at trial unless [the declarant is] unavailable to testify, and the defendant had . . . a prior opportunity for cross-examination.” 541 U.S. 36, 53-54 (2004).

2025It therefore makes perfect sense that "[t]he defendant always has the burden of raising [a] Confrontation Clause objection." Melendez-Diaz, 557 U.S. at 327 ; see also United States v. Maxwell, 724 F.3d 724, 728 (7th Cir. 2013) ("[T]he strategic decision to demand live testimony is the defendant's choice to make, and one that many defendants . . . opt to forego— sometimes for good reasons.").

2025Because a criminal defendant is not compelled to insist that the State call a live witness who might do damage to his or her case, "[t]he defendant always has the burden of raising his Confrontation Clause objection." Melendez-Diaz v. Massachusetts, 557 U.S. 305, 327-28 (2009) ("It is unlikely that defense counsel will insist on live testimony whose effect will be merely to highlight rather than cast doubt upon the forensic analysis.").

2021See State v. Wilson, 227 N.J. 534, 543-44 (2017) (holding that defendant’s 11 objection to a map’s admission on grounds of form and content -- hearsay and the adequacy of a witness to provide the foundation for the map’s admission -- reasonably constituted a sufficient Confrontation Clause challenge).

2020See A-0508-18T2 6 State v. Wilson, 227 N.J. 534, 543-44 (2017) (ruling a defendant's Confrontation Clause claim "was timely and adequate," where counsel objected "and 'alluded to an inability to cross-examine'" (quoting State v. Wilson, 442 N.J.

2025It therefore makes perfect sense that "[t]he defendant always has the burden of raising [a] Confrontation Clause objection." Ibid. (quoting Melendez-Diaz, 557 U.S. at 327 ).

2024Indeed, our Supreme Court has stated that "[t]he defendant always has the burden of raising [their] Confrontation Clause objection[.]" Williams, 219 N.J. at 99 (citing Melendez- Diaz, 557 U.S. at 328 ).

2025See United States v. Moon, 512 F.3d A-2793-22 40 359, 361 (7th Cir.) ("That it may be to defendants' advantage to accept the hearsay version of evidence makes it problematic to entertain a Crawford [8] claim via the plain-error [standard] . . . ."), cert. denied, 555 U.S. 812 (2008); State v. Nyhammer, 197 N.J. 383, 413-14 (finding no Confrontation Clause violation where defendant chose "strategic course" not to cross- examine victim about accusations in videotaped interview), cert. denied, 558 U.S. 831 (2009).

2022State v. Nyhammer, 197 N.J. 383, 413-14 (2009) (finding no Confrontation Clause violation where defense counsel elected to refrain from asking on cross-examination certain questions of a child victim whose out-court-statements were admitted under a hearsay exception).

2022"The government bears the burden of proving the constitutional admissibility of a statement in response to a Confrontation Clause challenge." State v. Basil, 202 N.J. 570, 596 (2010).

2022"The government bears the burden of proving the constitutional admissibility of a statement in response to a Confrontation Clause challenge." State v. Basil, 202 N.J. 570, 596 (2010).

2022Branch, 182 N.J. at 352 (referring to "seemingly neutral language"), we think the Confrontation Clause violation in this case is particularly obvious and egregious.

2022Branch, 182 N.J. at 352 (referring to "seemingly neutral language"), we think the Confrontation Clause violation in this case is particularly obvious and egregious.

2016In a case involving a Confrontation Clause violation, the Court said, "where the trial court commits a constitutional error, that error is to be considered 'a fatal error, mandating a new trial, unless we are "able to declare a belief that it was harmless beyond a reasonable doubt."'" State v. Slaughter, 219 N.J. 104, 118-19 (2014) (quoting Cabbell, supra, 207 N.J. at 338 ) (in turn quoting Chapman v. California, 386 U.S. 18, 24 , 87 S. Ct. 824, 828 , 17 L.

2016In a case involving a Confrontation Clause violation, the Court said, "where the trial court commits a constitutional error, that error is to be considered 'a fatal error, mandating a new trial, unless we are "able to declare a belief that it was harmless beyond a reasonable doubt."'" State v. Slaughter, 219 N.J. 104, 118-19 (2014) (quoting Cabbell, supra, 207 N.J. at 338 ) (in turn quoting Chapman v. California, 386 U.S. 18, 24 , 87 S. Ct. 824, 828 , 17 L.

2020Although the Confrontation Clause analysis prescribed in Idaho v. Wright, 497 U.S. 805 (1990), has largely been supplanted by Crawford v. Washington, 541 U.S. 36 (2004), New Jersey courts still determine "trustworthiness" under 4 We need not address the "incompetency proviso" of the Rule, which states "that no child whose statement is to be offered in evidence pursuant to this rule shall be disqualified to be a witness in such proceeding by virtue of the requirements of Rule 601." See State ex rel.

2020Although the Confrontation Clause analysis prescribed in Idaho v. Wright, 497 U.S. 805 (1990), has largely been supplanted by Crawford v. Washington, 541 U.S. 36 (2004), New Jersey courts still determine "trustworthiness" under 4 We need not address the "incompetency proviso" of the Rule, which states "that no child whose statement is to be offered in evidence pursuant to this rule shall be disqualified to be a witness in such proceeding by virtue of the requirements of Rule 601." See State ex rel.

1988Defendant challenged his conviction on several grounds, claiming particularly that the admission of the alleged victims’ out-of-court statements violated his right of confrontation under the sixth amendment to the United States Constitution. 7 The Washington Supreme Court, invoking the standards established in Ohio v. Roberts, 448 U.S. 56 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980), for determining when the admission of hearsay evidence can be reconciled with the requirements of the confrontation clause, observed that Roberts required (1) availability of the declarant for cross-examination or a d

1988Defendant challenged his conviction on several grounds, claiming particularly that the admission of the alleged victims’ out-of-court statements violated his right of confrontation under the sixth amendment to the United States Constitution. 7 The Washington Supreme Court, invoking the standards established in Ohio v. Roberts, 448 U.S. 56 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980), for determining when the admission of hearsay evidence can be reconciled with the requirements of the confrontation clause, observed that Roberts required (1) availability of the declarant for cross-examination or a d

2008Ibid. [12] Significantly, the Court noted that "[t]he solemnity of even an oral declaration of relevant past fact to an investigating officer is well enough established by the severe consequences that can attend a deliberate falsehood." Davis, supra, 547 U.S. at 826 , 126 S.Ct. at 2276 , 165 L.Ed. 2d at 240 . [13] Had the prosecution introduced the contemporaneous statements of the eyewitness to the 911 operator, assuming that he was relating the robbery in progress and pursuit, the Confrontation Clause analysis might well have been different. [14] The record in this case does not involve flig

2008Ibid. [12] Significantly, the Court noted that "[t]he solemnity of even an oral declaration of relevant past fact to an investigating officer is well enough established by the severe consequences that can attend a deliberate falsehood." Davis, supra, 547 U.S. at 826 , 126 S.Ct. at 2276 , 165 L.Ed. 2d at 240 . [13] Had the prosecution introduced the contemporaneous statements of the eyewitness to the 911 operator, assuming that he was relating the robbery in progress and pursuit, the Confrontation Clause analysis might well have been different. [14] The record in this case does not involve flig

2022See Gibbs v. Covello, 996 F.3d 596, 601 (9th Cir.) (holding that the government did not offend the Confrontation Clause when it introduced the preliminary hearing testimony of a witness unavailable at trial as long as the defendant had a prior opportunity to cross-examine), cert. denied, 142 S. Ct. 453 (2021); United States v. Ralston, 973 F.3d 896, 911 (8th Cir. 2020) (affirming the district court’s decision rejecting a confrontation challenge to an unavailable witness’s testimony at a preliminary hearing); Williams v. Bauman, 759 F.3d 630 , 634- 35 (6th Cir. 2014) (holding that the defendant

2022See Gibbs v. Covello, 996 F.3d 596, 601 (9th Cir.) (holding that the government did not offend the Confrontation Clause when it introduced the preliminary hearing testimony of a witness unavailable at trial as long as the defendant had a prior opportunity to cross-examine), cert. denied, 142 S. Ct. 453 (2021); United States v. Ralston, 973 F.3d 896, 911 (8th Cir. 2020) (affirming the district court’s decision rejecting a confrontation challenge to an unavailable witness’s testimony at a preliminary hearing); Williams v. Bauman, 759 F.3d 630 , 634- 35 (6th Cir. 2014) (holding that the defendant

2022See Gibbs v. Covello, 996 F.3d 596, 603 (9th Cir.) (explaining that the standard governing habeas corpus limits the federal courts’ power of review and concluding that the Confrontation Clause claim “is a close one, and if we were answering that question de novo, we might” find there to be a violation), cert. denied, 142 S. Ct. 453 (2021); Williams v. Bauman, 759 F.3d 14 For example, criminal prosecutions in California may proceed by way of the filing of an information rather than the return of a grand jury indictment.

2022See Gibbs v. Covello, 996 F.3d 596, 601 (9th Cir.) (holding that the government did not offend the Confrontation Clause when it introduced the preliminary hearing testimony of a witness unavailable at trial as long as the defendant had a prior opportunity to cross-examine), cert. denied, 142 S. Ct. 453 (2021); United States v. Ralston, 973 F.3d 896, 911 (8th Cir. 2020) (affirming the district court’s decision rejecting a confrontation challenge to an unavailable witness’s testimony at a preliminary hearing); Williams v. Bauman, 759 F.3d 630 , 634- 35 (6th Cir. 2014) (holding that the defendant

2022See Gibbs v. Covello, 996 F.3d 596, 601 (9th Cir.) (holding that the government did not offend the Confrontation Clause when it introduced the preliminary hearing testimony of a witness unavailable at trial as long as the defendant had a prior opportunity to cross-examine), cert. denied, 142 S. Ct. 453 (2021); United States v. Ralston, 973 F.3d 896, 911 (8th Cir. 2020) (affirming the district court’s decision rejecting a confrontation challenge to an unavailable witness’s testimony at a preliminary hearing); Williams v. Bauman, 759 F.3d 630 , 634- 35 (6th Cir. 2014) (holding that the defendant

2022See Gibbs v. Covello, 996 F.3d 596, 601 (9th Cir.) (holding that the government did not offend the Confrontation Clause when it introduced the preliminary hearing testimony of a witness unavailable at trial as long as the defendant had a prior opportunity to cross-examine), cert. denied, 142 S. Ct. 453 (2021); United States v. Ralston, 973 F.3d 896, 911 (8th Cir. 2020) (affirming the district court’s decision rejecting a confrontation challenge to an unavailable witness’s testimony at a preliminary hearing); Williams v. Bauman, 759 F.3d 630 , 634- 35 (6th Cir. 2014) (holding that the defendant

2022The State need not demonstrate that the defendant undermined the credibility of the unavailable witness at the prior proceeding to satisfy the constitutional test; as the Supreme Court has noted, “successful cross- 41 examination is not the constitutional guarantee.” United States v. Owens, 484 U.S. 554, 560 (1988); accord Cabbell, 207 N.J. at 337 .

2022The State need not demonstrate that the defendant undermined the credibility of the unavailable witness at the prior proceeding to satisfy the constitutional test; as the Supreme Court has noted, “successful cross- examination is not the constitutional guarantee.” United States v. Owens, 484 U.S. 554, 560 (1988); accord Cabbell, 207 N.J. at 337 .

2022In Crawford v. Washington, the United States Supreme Court held that the framers of the Constitution intended the Confrontation Clause to bar the admission of “testimonial statements of a witness who did not appear at trial unless [the declarant is] unavailable to testify, and the defendant had . . . a prior opportunity for cross-examination.” 541 U.S. 36, 53-54 (2004). “[T]he Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Delaware v. Fensterer, 474 U.S. 15

2022In Crawford v. Washington, the United States Supreme Court held that the framers of the Constitution intended the Confrontation Clause to bar the admission of “testimonial statements of a witness who did not appear at trial unless [the declarant is] unavailable to testify, and the defendant had . . . a prior opportunity for cross-examination.” 541 U.S. 36, 53-54 (2004). “[T]he Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Delaware v. Fensterer, 474 U.S. 15

2009See, e.g., United States v. White, 116 F.3d 903, 912 (D.C.Cir.1997) (noting common trend of loss of both right to confront witness and to object based on hearsay); United States v. Houlihan, 92 F.3d 1271, 1282 (1st Cir.1996) (same); United States v. Mastrangelo, 693 F.2d 269, 272 (2d Cir.1982) (same); United States v. Thevis, 665 F.2d 616, 633 (5th Cir.1982) (same).

2007The State argues that we should judicially adopt the hearsay exception codified in Fed.R.Evid. 804(b)(6) because the introduction of Bush's statement "abide[s] by the long-established common law rule that a defendant who procures a witness's silence through threats, intimidation or coercion forfeits the protections provided by the confrontation clause and the hearsay rule," citing White, supra, 116 F. 3d at 912 ; United States v. Houlihan, 92 F. 3d 1271, 1282 (1st Cir.1996), cert. denied, 519 U.S. 1118 , 117 S.Ct. 963 , 136 L.Ed. 2d 849 (1997); United States v. Aguiar, 975 F. 2d 45, 47 (2d Cir

2009See, e.g., United States v. White, 116 F.3d 903, 912 (D.C.Cir.1997) (noting common trend of loss of both right to confront witness and to object based on hearsay); United States v. Houlihan, 92 F.3d 1271, 1282 (1st Cir.1996) (same); United States v. Mastrangelo, 693 F.2d 269, 272 (2d Cir.1982) (same); United States v. Thevis, 665 F.2d 616, 633 (5th Cir.1982) (same).

2007The State argues that we should judicially adopt the hearsay exception codified in Fed.R.Evid. 804(b)(6) because the introduction of Bush's statement "abide[s] by the long-established common law rule that a defendant who procures a witness's silence through threats, intimidation or coercion forfeits the protections provided by the confrontation clause and the hearsay rule," citing White, supra, 116 F. 3d at 912 ; United States v. Houlihan, 92 F. 3d 1271, 1282 (1st Cir.1996), cert. denied, 519 U.S. 1118 , 117 S.Ct. 963 , 136 L.Ed. 2d 849 (1997); United States v. Aguiar, 975 F. 2d 45, 47 (2d Cir

2024Furthermore, it is well-recognized that as a matter of trial strategy, defense counsel may refrain from raising a Confrontation Clause objection to testimony "that may inure to the advantage of the defendant." Williams, 219 N.J. at 99 . "[W]hen a defendant later claims that a trial court was mistaken for allowing [them] to pursue a chosen strategy—a strategy not unreasonable on its face but one that did not result in a favorable outcome—[their] claim may be barred by the invited-error doctrine." Id. at 100 (citing State v. A.R., 213 N.J. 542, 561-62 (2013), then citing N.J.

2024Furthermore, it is well-recognized that as a matter of trial strategy, defense counsel may refrain from raising a Confrontation Clause objection to testimony "that may inure to the advantage of the defendant." Williams, 219 N.J. at 99 . "[W]hen a defendant later claims that a trial court was mistaken for allowing [them] to pursue a chosen strategy—a strategy not unreasonable on its face but one that did not result in a favorable outcome—[their] claim may be barred by the invited-error doctrine." Id. at 100 (citing State v. A.R., 213 N.J. 542, 561-62 (2013), then citing N.J.

2009As noted by the Supreme Court in Mattox v. United States, 156 U.S. 237, 242-43 , 15 S.Ct. 337, 339 , 39 L.Ed. 409 (1895), the confrontation clause envisions “a personal examination and cross-examination of the witness, in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.” Similarly, the hearsay rule envisions testimo

2009As noted by the Supreme Court in Mattox v. United States, 156 U.S. 237, 242-43 , 15 S.Ct. 337, 339 , 39 L.Ed. 409 (1895), the confrontation clause envisions “a personal examination and cross-examination of the witness, in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.” Similarly, the hearsay rule envisions testimo

2022See Gibbs v. Covello, 996 F.3d 596, 601 (9th Cir.) (holding that the government did not offend the Confrontation Clause when it introduced the preliminary hearing testimony of a witness unavailable at trial as long as the defendant had a prior opportunity to cross-examine), cert. denied, 142 S. Ct. 453 (2021); United States v. Ralston, 973 F.3d 896, 911 (8th Cir. 2020) (affirming the district court’s decision rejecting a confrontation challenge to an unavailable witness’s testimony at a preliminary hearing); Williams v. Bauman, 759 F.3d 630 , 634- 35 (6th Cir. 2014) (holding that the defendant

2022See Gibbs v. Covello, 996 F.3d 596, 601 (9th Cir.) (holding that the government did not offend the Confrontation Clause when it introduced the preliminary hearing testimony of a witness unavailable at trial as long as the defendant had a prior opportunity to cross-examine), cert. denied, 142 S. Ct. 453 (2021); United States v. Ralston, 973 F.3d 896, 911 (8th Cir. 2020) (affirming the district court’s decision rejecting a confrontation challenge to an unavailable witness’s testimony at a preliminary hearing); Williams v. Bauman, 759 F.3d 630 , 634- 35 (6th Cir. 2014) (holding that the defendant

2009Circuit explained in White, supra, “[bjecause both the hearsay rule and the confrontation clause are designed to protect against the dangers of using out-of-court declarations as proof, a defendant’s actions that make it necessary for the government to resort to such proof should be construed as a forfeiture of the protections afforded under both.” 116 F.3d at 912 .

2009Circuit explained in White, supra, “[bjecause both the hearsay rule and the confrontation clause are designed to protect against the dangers of using out-of-court declarations as proof, a defendant’s actions that make it necessary for the government to resort to such proof should be construed as a forfeiture of the protections afforded under both.” 116 F.3d at 912 .

2016Second, it concluded that neither United States Supreme Court decision requires “that in every ease, no matter the type of testing involved or the type of review conducted by the person who does testify, the primary analyst involved in the original testing must testify to avoid a Confrontation Clause violation.” Ibid.

2016Second, it concluded that neither United States Supreme Court decision requires “that in every ease, no matter the type of testing involved or the type of review conducted by the person who does testify, the primary analyst involved in the original testing must testify to avoid a Confrontation Clause violation.” Ibid.

2021Addressing whether such statements would be considered testimonial, the Court stated that "[h]ad the prosecution introduced the contemporaneous statements of the eyewitness to the 911 operator, assuming that he was relating the robbery in progress and pursuit, the Confrontation Clause analysis might well have been different." Id. at 348 n.13.

2021Addressing whether such statements would be considered testimonial, the Court stated that "[h]ad the prosecution introduced the contemporaneous statements of the eyewitness to the 911 operator, assuming that he was relating the robbery in progress and pursuit, the Confrontation Clause analysis might well have been different." Id. at 348 n.13.

1976The statements are inadmissible for corroboration purposes under the rule of Bruton v. United States, 391 U.S. 123 , 88 S.Ct. 1620 , 20 L.Ed. 2d 476 (1968), which prohibits, as a violation of the confrontation clause, the use of a codefendant's confession implicating the defendant when the codefendant is not available for cross-examination.

1976The statements are inadmissible for corroboration purposes under the rule of Bruton v. United States, 391 U.S. 123 , 88 S.Ct. 1620 , 20 L.Ed. 2d 476 (1968), which prohibits, as a violation of the confrontation clause, the use of a codefendant's confession implicating the defendant when the codefendant is not available for cross-examination.

1987The confrontation requirement ensures: (1) A witness will give his statements under oath — thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the greatest legal engine ever invented for the discovery of truth; (3) permits the jury, that is to decide the defendant's fate, to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility. [ Id. at 158 , 90 S.Ct. at 1935 ] Here, Monaghan has agreed to limit his right t

1987The confrontation requirement ensures: (1) A witness will give his statements under oath — thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the greatest legal engine ever invented for the discovery of truth; (3) permits the jury, that is to decide the defendant's fate, to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility. [ Id. at 158 , 90 S.Ct. at 1935 ] Here, Monaghan has agreed to limit his right t

2011Notwithstanding the State’s remaining proofs, affirmance of the two remaining convictions would require us to conclude that the admission of the lab certificate was harmless beyond a reasonable doubt. “[B]ecause the improper admission of hearsay evidence implicates the confrontation clause, we consider whether it was ‘harmless beyond a reasonable doubt.’ ” State v. Briggs, 279 N.J.Super. 555, 565 , 653 A.2d 1139 (App.Div.) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 684 , 106 S.Ct. 1431, 1438 , 89 L.Ed.2d 674, 686 (1986)), certif. denied, 141 N.J. 99 , 660 A.2d 1198 (1995).

2011Notwithstanding the State’s remaining proofs, affirmance of the two remaining convictions would require us to conclude that the admission of the lab certificate was harmless beyond a reasonable doubt. “[B]ecause the improper admission of hearsay evidence implicates the confrontation clause, we consider whether it was ‘harmless beyond a reasonable doubt.’ ” State v. Briggs, 279 N.J.Super. 555, 565 , 653 A.2d 1139 (App.Div.) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 684 , 106 S.Ct. 1431, 1438 , 89 L.Ed.2d 674, 686 (1986)), certif. denied, 141 N.J. 99 , 660 A.2d 1198 (1995).

1996NOTES [1] The Negron court noted that the confrontation clause of the Sixth Amendment was made applicable to the states, via the Fourteenth Amendment, in Pointer v. Texas, 380 U.S. 400 , 85 S.Ct. 1065 , 13 L.Ed. 2d 923 (1965).

1996NOTES [1] The Negron court noted that the confrontation clause of the Sixth Amendment was made applicable to the states, via the Fourteenth Amendment, in Pointer v. Texas, 380 U.S. 400 , 85 S.Ct. 1065 , 13 L.Ed. 2d 923 (1965).

2026A-3497-22 31 Two years ago, the United States Supreme Court revisited the Confrontation Clause issue in Smith, 602 U.S. at 779 , a case that defendant argues ended the so-called Michaels "workaround." In Smith, the United States Supreme Court instructed that when an expert witness relies on testing conducted by a non-testifying person to form an opinion, the expert necessarily relies on the truth of the underlying test results to form an opinion and is therefore hearsay.

2026Id. at 794-96 .