confrontation clause in District of Columbia

2016Substantial Rights To establish that this error affected Mr. Wills’s substantial rights, Mr. Wills must show “a reasonable probability that the Confrontation Clause violation had a prejudicial effect on the outcome of his trial.” Thomas v. United States, 914 A.2d 1, 21-22 (D.C. 2006) (citing United States v. Dominguez Benitez, 542 U.S. 74, 81-82 , 124 S.Ct. 2333 , 159 L.Ed.2d 157 (2004)).

2016Substantial Rights To establish that this error affected Mr. Wills’s substantial rights, Mr. Wills must show “a reasonable probability that the Confrontation Clause violation had a prejudicial effect on the outcome of his trial.” Thomas v. United States, 914 A.2d 1, 21-22 (D.C. 2006) (citing United States v. Dominguez Benitez, 542 U.S. 74, 81-82 , 124 S.Ct. 2333 , 159 L.Ed.2d 157 (2004)).

2022See Marquez v. United States, 903 A.2d 815, 817 (D.C. 2006) (“Because counsel objected at trial to the admission of the statement on purely evidentiary grounds and did not raise a Confrontation Clause objection, we must review the claim for plain error.” (footnote omitted)).

2022See Marquez v. United States, 903 A.2d 815, 817 (D.C. 2006) (“Because counsel objected at trial to the admission of the statement on purely evidentiary grounds and did not raise a Confrontation Clause objection, we must review the claim for plain error.” (footnote omitted)).

2025Imwinkelried, The New Wigmore: Evidentiary Privileges § 1.3 (2d ed. 2009) (defining a privilege as a “[s]tatutory or common law . . . [p]rocedural rule . . . inspired primarily by extrinsic social policy 1 See, e.g., Malloy v. Hogan, 378 U.S. 1, 6 (1964) (discussing the protection against self-incrimination); Crawford v. Washington, 541 U.S. 36, 68 (2004) (discussing the confrontation clause); Wong Sun v. United States, 371 U.S. 471 , 484- 85 (1963) (discussing the exclusionary rule). 67 (as opposed to institutional concerns about the quality of judicial evidence or the functioning of the adve

2014Without a statement responsive to an ongoing emergency, indeed, without any ongoing emergency at all, the admission of Ms. Parker’s out of court accusations cannot be categorized as nontestimonial under an “ongoing emergency” analysis. [[Image here]] “The text of the Sixth Amendment does not suggest any open-ended exceptions from the confrontation requirement to be developed by the courts,” Crawford, 541 U.S. at 54 , 124 S.Ct. 1354 .

2018It was not until oral argument that the United States advanced the argument that there is “tension” between the “well-reasoned suspicion” standard this court applied in cases such as Coates and the approach taken in cases such as Sherer v. United States, 470 A.2d 732, 738-39 (D.C. 1983) (upholding trial court‟s preclusion of cross-examination of witness about witness‟s alleged perjury in 61 unrelated trial, because defense counsel‟s proffer of proof of prior perjury was conclusory and contested by United States); see also Roundtree v. United States, 581 A.2d 315, 321 (D.C. 1990) (“Where an acc

2018It was not until oral argument that the United States advanced the argument that there is "tension" between the "well-reasoned suspicion" standard this court applied in cases such as Coates and the approach taken in cases such as Sherer v. United States , 470 A.2d 732 , 738-39 (D.C. 1983) (upholding trial court's preclusion of cross-examination of witness about witness's alleged perjury in unrelated trial, because defense counsel's proffer of proof of prior perjury was conclusory and contested by United States); see also Roundtree v. United States , 581 A.2d 315 , 321 (D.C. 1990) ("Where an ac

2007Because we do not disturb the trial court's decision not to admit the statements for the truth of the matter asserted, we need not reach appellant’s argument that doing so would violate appellant's rights under the confrontation clause of the U.S. Constitution pursuant to Crawford v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004) and Ohio v. Roberts, 448 U.S. 56 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980).

2007Because we do not disturb the trial court's decision not to admit the statements for the truth of the matter asserted, we need not reach appellant’s argument that doing so would violate appellant's rights under the confrontation clause of the U.S. Constitution pursuant to Crawford v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004) and Ohio v. Roberts, 448 U.S. 56 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980).

2024Whether the Error Was Harmless Beyond a Reasonable Doubt “Having found a Confrontation Clause error, we must reverse appellant’s conviction[s] unless we find the error harmless beyond a reasonable doubt.” Jenkins v. United States, 75 A.3d 174, 192 (D.C. 2013); see also Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986) (holding that Confrontation Clause errors are “subject to Chapman harmless-error analysis”).

2024Whether the Error Was Harmless Beyond a Reasonable Doubt “Having found a Confrontation Clause error, we must reverse appellant’s conviction[s] unless we find the error harmless beyond a reasonable doubt.” Jenkins v. United States, 75 A.3d 174, 192 (D.C. 2013); see also Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986) (holding that Confrontation Clause errors are “subject to Chapman harmless-error analysis”).

2023Because we have concluded that the earlier identification was reliable and admissible, there was no taint that would invalidate the identification made upon viewing the photo spread. 64 Even where there is no Confrontation Clause violation, “the opportunity to cross-examine does not operate to make [an otherwise inadmissible] incriminating extrajudicial statement admissible against the non-declarant co-defendant.” Thomas, 978 A.2d at 1223 (alteration in original) (quoting Carpenter v. United States, 430 A.2d 496, 503 (D.C. 1981) (en banc)).

2013See Thomas v. United, States, 978 A.2d 1211, 1227 (D.C.2009) (“[CJasual remarks to acquaintances in which the speaker ... confidentially admitted having committed or intending to commit a crime” are not testimonial.).

2010If an appellant fails to make a Confrontation Clause objection either before or during trial, we apply the plain error standard of review, Callaham, supra, 937 A.2d at 145 , which “requires an appellant to show (1) that there was error; (2) that was plain, clear, or obvious; (3) that affected the [appellant’s] substantial rights; and (4) that the error seriously affected the fairness, integrity or public reputation of the proceedings.” Id. (citing United States v. Olano, 507 U.S. 725, 734 , 113 S.Ct. 1770 , 123 L.Ed.2d 508 (1993)).

2010If an appellant fails to make a Confrontation Clause objection either before or during trial, we apply the plain error standard of review, Callaham, supra, 937 A.2d at 145 , which “requires an appellant to show (1) that there was error; (2) that was plain, clear, or obvious; (3) that affected the [appellant’s] substantial rights; and (4) that the error seriously affected the fairness, integrity or public reputation of the proceedings.” Id. (citing United States v. Olano, 507 U.S. 725, 734 , 113 S.Ct. 1770 , 123 L.Ed.2d 508 (1993)).

2024See Hammon, 547 U.S. at 819, 832 (holding that the “somewhat frightened” complainant’s on-the-scene statements were testimonial); Wills, 147 A.3d at 772 (“evidence that a complainant was distressed has not defeated a Confrontation Clause claim”); Andrade, 106 A.3d at 391 (finding statements testimonial even though declarant was “very upset”). 11 Considering the factors on the whole, we conclude that the emergency had subsided by the time Ms. Marvil called 911. 11 We express no view, of course, on whether Ms. Marvil actually engaged in fabrication or even had the intent to engage in fabrication

2024See Hammon, 547 U.S. at 819, 832 (holding that the “somewhat frightened” complainant’s on-the-scene statements were testimonial); Wills, 147 A.3d at 772 (“evidence that a complainant was distressed has not defeated a Confrontation Clause claim”); Andrade, 106 A.3d at 391 (finding statements testimonial even though declarant was “very upset”). 11 Considering the factors on the whole, we conclude that the emergency had subsided by the time Ms. Marvil called 911. 11 We express no view, of course, on whether Ms. Marvil actually engaged in fabrication or even had the intent to engage in fabrication

2018It was not until oral argument that the United States advanced the argument that there is “tension” between the “well-reasoned suspicion” standard this court applied in cases such as Coates and the approach taken in cases such as Sherer v. United States, 470 A.2d 732, 738-39 (D.C. 1983) (upholding trial court‟s preclusion of cross-examination of witness about witness‟s alleged perjury in 61 unrelated trial, because defense counsel‟s proffer of proof of prior perjury was conclusory and contested by United States); see also Roundtree v. United States, 581 A.2d 315, 321 (D.C. 1990) (“Where an acc

2018It was not until oral argument that the United States advanced the argument that there is "tension" between the "well-reasoned suspicion" standard this court applied in cases such as Coates and the approach taken in cases such as Sherer v. United States , 470 A.2d 732 , 738-39 (D.C. 1983) (upholding trial court's preclusion of cross-examination of witness about witness's alleged perjury in unrelated trial, because defense counsel's proffer of proof of prior perjury was conclusory and contested by United States); see also Roundtree v. United States , 581 A.2d 315 , 321 (D.C. 1990) ("Where an ac

2016There is at least “a reasonable probability that the Confrontation Clause violation had a prejudicial effect on the outcome” of Mr. Wills’s trial on the attempted theft charge, Otts v. United States, 952 A.2d 156, 161 (D.C. 2008), and therefore Mr. Wills’s substantial rights were affected by the constitutional error. 12 *776 With respect to Mr. Wills’s conviction for assault, we conclude that the erroneous admission of the testimonial statement did not affect Mr. Wills’s substantial rights.

2016There is at least “a reasonable probability that the Confrontation Clause violation had a prejudicial effect on the outcome” of Mr. Wills’s trial on the attempted theft charge, Otts v. United States, 952 A.2d 156, 161 (D.C. 2008), and therefore Mr. Wills’s substantial rights were affected by the constitutional error. 12 *776 With respect to Mr. Wills’s conviction for assault, we conclude that the erroneous admission of the testimonial statement did not affect Mr. Wills’s substantial rights.

1981In the rare case in which material new matters are brought out on redirect examination, however, the confrontation clause of the Sixth Amendment mandates that the opposing party must be given the right of recross-examination on the new issues—although the privilege of recross-examination as to matters not covered on redirect examination remains within the discretion of the trial court. [ 383 A.2d at 1073 (citations omitted; emphasis in original).] The question here is one of fact.

1981In the rare case in which material new matters are brought out on redirect examination, however, the confrontation clause of the Sixth Amendment mandates that the opposing party must be given the right of recross-examination on the new issues — although the privilege of recross-examination as to matters not covered on redirect examination remains within the discretion of the trial court. [ 383 A.2d at 1073 (citations omitted; emphasis in original).] The question here is one of the fact.

2024See Hammon, 547 U.S. at 819, 832 (holding that the “somewhat frightened” complainant’s on-the-scene statements were testimonial); Wills, 147 A.3d at 772 (“evidence that a complainant was distressed has not defeated a Confrontation Clause claim”); Andrade, 106 A.3d at 391 (finding statements testimonial even though declarant was “very upset”). 11 Considering the factors on the whole, we conclude that the emergency had subsided by the time Ms. Marvil called 911. 11 We express no view, of course, on whether Ms. Marvil actually engaged in fabrication or even had the intent to engage in fabrication

2024See Hammon, 547 U.S. at 819, 832 (holding that the “somewhat frightened” complainant’s on-the-scene statements were testimonial); Wills, 147 A.3d at 772 (“evidence that a complainant was distressed has not defeated a Confrontation Clause claim”); Andrade, 106 A.3d at 391 (finding statements testimonial even though declarant was “very upset”). 11 Considering the factors on the whole, we conclude that the emergency had subsided by the time Ms. Marvil called 911. 11 We express no view, of course, on whether Ms. Marvil actually engaged in fabrication or even had the intent to engage in fabrication

2022See Mack v. United States, 6 A.3d 1224, 1234 (D.C. 2010) (“Mr. Mack did not mention the Second Amendment in the trial court, and his reliance on the common law doctrine of self- defense was not sufficient to raise a constitutional claim.”); Comford v. United States, 947 A.2d 1181, 1188 (D.C. 2008) (explaining that “a hearsay objection [will not] preserve a Confrontation Clause claim”); see also Paige v. United States, 25 A.3d 74, 81 (D.C. 2011) (explaining that “[o]bjections must be made with reasonable 43 And thus our review should be for plain error.

2022See Mack v. United States, 6 A.3d 1224, 1234 (D.C. 2010) (“Mr. Mack did not mention the Second Amendment in the trial court, and his reliance on the common law doctrine of self- defense was not sufficient to raise a constitutional claim.”); Comford v. United States, 947 A.2d 1181, 1188 (D.C. 2008) (explaining that “a hearsay objection [will not] preserve a Confrontation Clause claim”); see also Paige v. United States, 25 A.3d 74, 81 (D.C. 2011) (explaining that “[o]bjections must be made with reasonable 43 And thus our review should be for plain error.

2022See Mack v. United States, 6 A.3d 1224, 1234 (D.C. 2010) (“Mr. Mack did not mention the Second Amendment in the trial court, and his reliance on the common law doctrine of self- defense was not sufficient to raise a constitutional claim.”); Comford v. United States, 947 A.2d 1181, 1188 (D.C. 2008) (explaining that “a hearsay objection [will not] preserve a Confrontation Clause claim”); see also Paige v. United States, 25 A.3d 74, 81 (D.C. 2011) (explaining that “[o]bjections must be made with reasonable 43 And thus our review should be for plain error.

2022See Mack v. United States, 6 A.3d 1224, 1234 (D.C. 2010) (“Mr. Mack did not mention the Second Amendment in the trial court, and his reliance on the common law doctrine of self- defense was not sufficient to raise a constitutional claim.”); Comford v. United States, 947 A.2d 1181, 1188 (D.C. 2008) (explaining that “a hearsay objection [will not] preserve a Confrontation Clause claim”); see also Paige v. United States, 25 A.3d 74, 81 (D.C. 2011) (explaining that “[o]bjections must be made with reasonable 43 And thus our review should be for plain error.

2022See Howard v. United States, 656 A.2d 1106, 1111 (D.C. 1995) (concluding that even if someone other than the defendant “made the first move for a gun once [the defendant] had arrived, armed,” “the degree of initiative [the defendant] had taken in creating the confrontation precluded a claim of self-defense.”).

2015See, e.g., Sams v. United States, 721 A.2d 945, 949-50, 953 (D.C.1998) (holding defendant could not assert self-defense when he claimed to have returned to engage “amicably” with a man who had just threatened him with a knife); Howard, 656 A.2d at 1109, 1111 (holding that where, after a confrontation, the defendants left, “armed themselves with a considerable amount of firepower,” and drove to the adversary’s house, “even if [someone there] made the first move for a gun once [the defendants] had arrived, armed, ... the degree of initiative [defendants] had taken in creating the confrontation p

2022See Mack v. United States, 6 A.3d 1224, 1234 (D.C. 2010) (“Mr. Mack did not mention the Second Amendment in the trial court, and his reliance on the common law doctrine of self- defense was not sufficient to raise a constitutional claim.”); Comford v. United States, 947 A.2d 1181, 1188 (D.C. 2008) (explaining that “a hearsay objection [will not] preserve a Confrontation Clause claim”); see also Paige v. United States, 25 A.3d 74, 81 (D.C. 2011) (explaining that “[o]bjections must be made with reasonable 43 And thus our review should be for plain error.

2022See Mack v. United States, 6 A.3d 1224, 1234 (D.C. 2010) (“Mr. Mack did not mention the Second Amendment in the trial court, and his reliance on the common law doctrine of self- defense was not sufficient to raise a constitutional claim.”); Comford v. United States, 947 A.2d 1181, 1188 (D.C. 2008) (explaining that “a hearsay objection [will not] preserve a Confrontation Clause claim”); see also Paige v. United States, 25 A.3d 74, 81 (D.C. 2011) (explaining that “[o]bjections must be made with reasonable 43 And thus our review should be for plain error.

2016See Sobin v. District of Columbia, 494 A.2d 1272, 1275 (D.C.1985).

2016See Sobin v. District of Columbia, 494 A.2d 1272, 1275 (D.C.1985) (“When a defendant fails to object to the admission of certain testimony, and then further develops that testimony on cross-examination, he will not be heard to argue on appeal that its admission constituted reversible error.”). 28 ' Finally, Mr. Wonson argues that the prosecutor’s closing argument was “inflammatory” and violated the Fifth Amendment’s Due Process Clause.

1981Both the Bruton and Nelson holdings were based on the Sixth Amendment right to confrontation and did not address the additional question whether the trial court abused its discretion in ruling on a motion to sever for prejudicial joinder. [11] The Court has emphasized that the confrontation clause is not to be equated with the rules of evidence, Dutton v. Evans, 400 U.S. 74, 81-82 , 91 S.Ct. 210, 215-16 , 27 L.Ed.2d 213 (1970); California v. Green, 399 U.S. 149, 155-56 , 90 S.Ct. 1930, 1933-34 , 26 L.Ed.2d 489 (1970).

1981Both the Bruton and Nelson holdings were based on the Sixth Amendment right to confrontation and did not address the additional question whether the trial court abused its discretion in ruling on a motion to sever for prejudicial joinder. [11] The Court has emphasized that the confrontation clause is not to be equated with the rules of evidence, Dutton v. Evans, 400 U.S. 74, 81-82 , 91 S.Ct. 210, 215-16 , 27 L.Ed.2d 213 (1970); California v. Green, 399 U.S. 149, 155-56 , 90 S.Ct. 1930, 1933-34 , 26 L.Ed.2d 489 (1970).

2020In the circumstances, Jones required no more of Mr. Burns, who we conclude properly preserved his Confrontation Clause claim for our de novo review of the trial judge’s rulings. 57 of the testimonial materials is shared with the fact-finder to suggest its truth, without the report’s author being available for cross-examination.” Id. (quoting David H.

2019At Mr. Young's trial, and over his Confrontation Clause objection, 6 examiner Craig testified as an expert witness regarding the methodology she used to compare the DNA profile derived from the buccal swab with the "DNA profiles derived from [the victim's] vaginal swabs and [the] tissue." Id. at 1037, 1045 .

2016Substantial Rights To establish that this error affected Mr. Wills’s substantial rights, Mr. Wills must show “a reasonable probability that the Confrontation Clause violation had a prejudicial effect on the outcome of his trial.” Thomas v. United States, 914 A.2d 1, 21-22 (D.C. 2006) (citing United States v. Dominguez Benitez, 542 U.S. 74, 81-82 , 124 S.Ct. 2333 , 159 L.Ed.2d 157 (2004)).

2016Substantial Rights To establish that this error affected Mr. Wills’s substantial rights, Mr. Wills must show “a reasonable probability that the Confrontation Clause violation had a prejudicial effect on the outcome of his trial.” Thomas v. United States, 914 A.2d 1, 21-22 (D.C. 2006) (citing United States v. Dominguez Benitez, 542 U.S. 74, 81-82 , 124 S.Ct. 2333 , 159 L.Ed.2d 157 (2004)).

2023The violation, if any, was of evidentiary rules generally barring hearsay, which Waters agrees are subject to the less stringent Kotteakos test, 328 U.S. at 765 , which we now apply. 39 We conclude that, following the Kotteakos test, we can say with fair assurance that Waters’s convictions were not substantially swayed by the error, even when viewed cumulatively with the previously discussed erroneous admission of the Krut and Eidell memos.

2023The violation, if any, was of evidentiary rules generally barring hearsay, which Waters agrees are subject to the less stringent Kotteakos test, 328 U.S. at 765 , which we now apply. 39 We conclude that, following the Kotteakos test, we can say with fair assurance that Waters’s convictions were not substantially swayed by the error, even when viewed cumulatively with the previously discussed erroneous admission of the Krut and Eidell memos.

2016See Thomas v. United States, 914 A.2d 1, 8 (D.C. 2006); (Joyce B.) Johnson v. United States, 520 U.S. 461, 462 , 117 S.Ct. 1544 , 137 L.Ed.2d 718 (1997) (“The Olano [plain error] test ... requires that *697 there be (1) error, (2) that is plain, and (3) that affects substantial rights.

2016See Thomas v. United States, 914 A.2d 1, 8 (D.C. 2006); (Joyce B.) Johnson v. United States, 520 U.S. 461, 462 , 117 S.Ct. 1544 , 137 L.Ed.2d 718 (1997) (“The Olano [plain error] test ... requires that *697 there be (1) error, (2) that is plain, and (3) that affects substantial rights.

2013See also id. at 2250-51 (Breyer, J., concurring) ("As the plurality notes, in every post- Crawford case in which the Court has found a Confrontation Clause violation, the statement at issue had the primary purpose of accusing a targeted individual."); Melendez-Diaz v. Massachusetts, 557 U.S. 305, 329, 330 , 129 S.Ct. 2527 , 174 L.Ed.2d 314 (2009) (Thomas, J., concurring) (joining the Court’s 5-4 opinion that certificates of forensic analysis were testimonial "because the documents at issue in this case are quite plainly affidavits, ... [and] [a]s such, they fall within the core class of testim

2013See also id. at 2250-51 (Breyer, J., concurring) ("As the plurality notes, in every post- Crawford case in which the Court has found a Confrontation Clause violation, the statement at issue had the primary purpose of accusing a targeted individual."); Melendez-Diaz v. Massachusetts, 557 U.S. 305, 329, 330 , 129 S.Ct. 2527 , 174 L.Ed.2d 314 (2009) (Thomas, J., concurring) (joining the Court’s 5-4 opinion that certificates of forensic analysis were testimonial "because the documents at issue in this case are quite plainly affidavits, ... [and] [a]s such, they fall within the core class of testim

2023Because we have concluded that the earlier identification was reliable and admissible, there was no taint that would invalidate the identification made upon viewing the photo spread. 64 Even where there is no Confrontation Clause violation, “the opportunity to cross-examine does not operate to make [an otherwise inadmissible] incriminating extrajudicial statement admissible against the non-declarant co-defendant.” Thomas, 978 A.2d at 1223 (alteration in original) (quoting Carpenter v. United States, 430 A.2d 496, 503 (D.C. 1981) (en banc)).

2007"Perforce, satisfaction of a defendant’s Sixth Amendment right to confrontation ... does not terminate the trial judge’s continuing duty to take adequate steps to reduce or eliminate any prejudice arising from joinder." Carpenter, 430 A.2d at 503 . 6 .