confrontation clause in Washington

2026Iverson, 126 Wn. App. at 337 ; see Crawford, 541 U.S. at 60 n. 9 (The confrontation clause “does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.”).

2026Ed. 2d 177 (2004), the Supreme Court considered the admissibility of an out-of-court recorded statement by a third person, which implicated Michael Crawford, and held that the confrontation clause barred its admission because the statement was “testimonial.” Based on a reading of the confrontation clause text and the history behind the clause, the Court reasoned that the confrontation clause applies to “witnesses” against the accused, that is those who “bear testimony.” 541 U.S. 36, 51 (2004).

2021State v. O’Cain, 169 Wn. App. 228, 235 , 279 P.3d 926 (2012) (“[T]he right to confrontation must be asserted at or before trial or be lost.”); see also Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311, 313-14 , 129 S. Ct. 2527 , 174 L. Ed. 2d 314 (2009) (claim of error premised on the confrontation clause must be asserted at or before trial or be lost).

2021State v. O’Cain, 169 Wn. App. 228, 235 , 279 P.3d 926 (2012) (“[T]he right to confrontation must be asserted at or before trial or be lost.”); see also Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311, 313-14 , 129 S. Ct. 2527 , 174 L. Ed. 2d 314 (2009) (claim of error premised on the confrontation clause must be asserted at or before trial or be lost).

2007Ohio v. Roberts, 448 U.S. 56, 66 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980), overruled by Crawford, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 .

2007Ohio v. Roberts, 448 U.S. 56, 66 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980), overruled by Crawford, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 .

2017Ed. 2d 40 (1987) (plurality opinion) (Noting that to accept a broader interpretation would transform the confrontation clause into a constitutionally compelled rule of discovery and further recognizing the Court "normally has refused to find a Sixth Amendment violation when the asserted interference with cross-examination did not occur at trial."); California v. Green, 399 U.S. 149, 157 , 90 S. Ct. 1930 ; 26 L.

2017Ed. 2d 40 (1987) (plurality opinion) (Noting that to accept a broader interpretation would transform the confrontation clause into a constitutionally compelled rule of discovery and further recognizing the Court "normally has refused to find a Sixth Amendment violation when the asserted interference with cross-examination did not occur at trial."); California v. Green, 399 U.S. 149, 157 , 90 S. Ct. 1930 ; 26 L.

2026The confrontation clause “bars ‘admission of testimonial statements of a witness who did not appear at trial unless [they] [were] unavailable to testify, and the defendant had had a prior opportunity for cross-examination.’” Davis v. Washington, 547 U.S. 813, 821 , 126 S. Ct. 2266 , 165 L. Ed. 2d 224 (2006) (quoting Crawford v. Washington, 541 U.S. 36, 53-54 , 124 S. Ct. 1354 , 158 L. Ed. 2d 177 (2004)).

2026The confrontation clause “bars ‘admission of testimonial statements of a witness who did not appear at trial unless [they] [were] unavailable to testify, and the defendant had had a prior opportunity for cross-examination.’” Davis v. Washington, 547 U.S. 813, 821 , 126 S. Ct. 2266 , 165 L. Ed. 2d 224 (2006) (quoting Crawford v. Washington, 541 U.S. 36, 53-54 , 124 S. Ct. 1354 , 158 L. Ed. 2d 177 (2004)).

2026The court notes that O’Brien has rights enumerated in the confrontation clause. “[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679 , 106 S. Ct. 1431 , 89 L. Ed. 2d 674 (1986).

2026The court notes that O’Brien has rights enumerated in the confrontation clause. “[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679 , 106 S. Ct. 1431 , 89 L. Ed. 2d 674 (1986).

2017The confrontation clause is not literally construed so as to require a physical, face-to-face confrontation between the defendant and the speaker.11 State v. Foster, 135 Wn.2d 441, 456 , 957 P.2d 712 (1998) (citing Maryland v. Craig, 497 U.S. 836, 847 , 110 S. Ct. 3157 , 111 L. Ed. 2d 666 (1990)).

2017The confrontation clause is not literally construed so as to require a physical, face-to-face confrontation between the defendant and the speaker.11 State v. Foster, 135 Wn.2d 441, 456 , 957 P.2d 712 (1998) (citing Maryland v. Craig, 497 U.S. 836, 847 , 110 S. Ct. 3157 , 111 L. Ed. 2d 666 (1990)).

2026State v. O’Cain, 169 Wn. App. 228, 244-45 , 279 P.3d 926 (2012) (“As with decisions implicating trial strategy, the decision to raise a confrontation clause objection is a determination that is reserved to the discretion of competent defense counsel.”); Wilson v. Gray, 44 345 F.2d 282, 287-88 (9th Cir.1965) (holding that the right to confrontation was waived by trial counsel’s stipulation to the matter being heard based on the transcript of the preliminary hearing); see also State v. Thomas, 128 Wn.2d 553, 559 , 910 P.2d 475 (1996) (stating that the right to confrontation is similar to the rig

2026State v. O’Cain, 169 Wn. App. 228, 244-45 , 279 P.3d 926 (2012) (“As with decisions implicating trial strategy, the decision to raise a confrontation clause objection is a determination that is reserved to the discretion of competent defense counsel.”); Wilson v. Gray, 44 345 F.2d 282, 287-88 (9th Cir.1965) (holding that the right to confrontation was waived by trial counsel’s stipulation to the matter being heard based on the transcript of the preliminary hearing); see also State v. Thomas, 128 Wn.2d 553, 559 , 910 P.2d 475 (1996) (stating that the right to confrontation is similar to the rig

2022A. LEGAL PRINCIPLES The confrontation clause of the Sixth Amendment to the United States Constitution provides that a person accused of a crime has the right “to be confronted with the witnesses against him.” Article I, section 22 of the Washington Constitution states that an “accused shall have the right . . . to meet the witnesses against him face to face.” The United States Supreme Court in Maryland v. Craig addressed whether the Sixth Amendment prohibited a child witness in a child abuse case from testifying by one-way closed circuit television. 497 U.S. 836, 840 , 110 S. Ct. 3157 , 111 L.

2022A. LEGAL PRINCIPLES The confrontation clause of the Sixth Amendment to the United States Constitution provides that a person accused of a crime has the right “to be confronted with the witnesses against him.” Article I, section 22 of the Washington Constitution states that an “accused shall have the right . . . to meet the witnesses against him face to face.” The United States Supreme Court in Maryland v. Craig addressed whether the Sixth Amendment prohibited a child witness in a child abuse case from testifying by one-way closed circuit television. 497 U.S. 836, 840 , 110 S. Ct. 3157 , 111 L.

2024App. at 652 . 28 No. 38437-3-III State v. Howard Under the Sixth Amendment, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” State v. Davis, 154 Wn.2d 291, 298 , 111 P.3d 844 (2005). “[W]hen a witness is asked questions about the events at issue and about his or her prior statements, but answers that he or she is unable to remember the charged events or the prior statements, this provides the defendant sufficient opportunity for cross-examination to satisfy the confrontation clause.” State v. Price, 158 Wn.2d 630, 650 ,

2024App. at 652 . 28 No. 38437-3-III State v. Howard Under the Sixth Amendment, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” State v. Davis, 154 Wn.2d 291, 298 , 111 P.3d 844 (2005). “[W]hen a witness is asked questions about the events at issue and about his or her prior statements, but answers that he or she is unable to remember the charged events or the prior statements, this provides the defendant sufficient opportunity for cross-examination to satisfy the confrontation clause.” State v. Price, 158 Wn.2d 630, 650 ,

2016Rohrich quotes West’s statement that a declar-ant “ ‘must ... be subject to cross-examination concerning the out-of-court declaration,”’ 132 Wn.2d at 478 (quoting West, 670 F.2d at 687 ), because the questioning of the stepdaughter in Rohrich was so narrow that it did not subject her to questioning about alleged abuse at all. ¶29 Clark, which discusses the United States Supreme Court decisions in Green and Owens, states that the admission of hearsay statements will not violate the confrontation clause if the hearsay declarant “is asked about the event and the hearsay statement,” 139 Wn.2d at 1

2011Specifically, our interpretation rested on the general requirement under the confrontation clause for “H]ive testimony ... before the watchful eyes of the jury.” Id. at 477 n.9; see also In re Pers.

2019The confrontation clause of the Sixth Amendment “bars the admission of ‘testimonial’ hearsay unless the declarant is unavailable to testify and the defendant had a prior opportunity for cross- examination.” State v. O’Cain, 169 Wn. App. 228, 235 , 279 P.3d 926 (2012); see also State v. Koslowski, 166 Wn.2d 409, 417 , 209 P.3d 479 (2009).

2019The confrontation clause of the Sixth Amendment “bars the admission of ‘testimonial’ hearsay unless the declarant is unavailable to testify and the defendant had a prior opportunity for cross- examination.” State v. O’Cain, 169 Wn. App. 228, 235 , 279 P.3d 926 (2012); see also State v. Koslowski, 166 Wn.2d 409, 417 , 209 P.3d 479 (2009).

2025We concluded the confrontation clause was not offended because the supervisor reviewed “the results of the control samples, she reviewed the testing procedures, and she reviewed her subordinate analysts’ results at each step in the process.” Id. at 490-91 .

2025In Lui we concluded the confrontation clause “allows expert witnesses to rely on technical data prepared by others when reaching their own conclusions, without requiring each laboratory technician to take the witness stand.” 179 Wn.2d at 483 .

2026The confrontation clause primarily protects “cross- examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand.” Davis v. Alaska, 415 U.S. 308, 316 (1974) (emphasis added).

2020“The confrontation clause primarily protects ‘cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand.’” Lee, 188 Wn.2d at 489 (quoting Davis v. Alaska, 415 U.S. 308, 316 , 94 S. Ct. 1105 , 39 L. Ed. 2d 347 (1974)).

2010See McCray v. Illinois, 386 U.S. 300, 311-13 , 87 S.Ct. 1056 , 18 L.Ed.2d 62 (1967) (no Confrontation Clause violation where defendant was denied the chance to discover an informant's name at pretrial hearing); see also Pennsylvania v. Ritchie, 480 U.S. 39, 52 , 54 n. 10, 107 S.Ct. 989, 999 , 94 L.Ed.2d 40 (1987) (plurality opinion) (Noting that to accept a broader interpretation would transform the Confrontation Clause into a constitutionally compelled rule of discovery and further recognizing the Court "normally has refused to find a Sixth Amendment violation when the asserted interference w

2010See McCray v. Illinois, 386 U.S. 300, 311-13 , 87 S.Ct. 1056 , 18 L.Ed.2d 62 (1967) (no Confrontation Clause violation where defendant was denied the chance to discover an informant's name at pretrial hearing); see also Pennsylvania v. Ritchie, 480 U.S. 39, 52 , 54 n. 10, 107 S.Ct. 989, 999 , 94 L.Ed.2d 40 (1987) (plurality opinion) (Noting that to accept a broader interpretation would transform the Confrontation Clause into a constitutionally compelled rule of discovery and further recognizing the Court "normally has refused to find a Sixth Amendment violation when the asserted interference w

2020“An alleged violation of the confrontation clause is reviewed de novo.” State v. Jasper, 174 Wn.2d 96, 108 , 271 P.3d 876 (2012).

2020“An alleged violation of the confrontation clause is reviewed de novo.” State v. Jasper, 174 Wn.2d 96, 108 , 271 P.3d 876 (2012).

2015While, this court reviews alleged violations of the confrontation clause de novo, State v. Jasper, 174 Wn.2d 96, 108 , 271 P.3d 876 (2012) (citing Lilly v. Virginia, 527 U.S. 116, 137 , 119 S. Ct. 1887 , 144 L.

2015While, this court reviews alleged violations of the confrontation clause de novo, State v. Jasper, 174 Wn.2d 96, 108 , 271 P.3d 876 (2012) (citing Lilly v. Virginia, 527 U.S. 116, 137 , 119 S. Ct. 1887 , 144 L.

2006Owens, 484 U.S. at 560 , 108 S.Ct. 838 ; see also Fensterer, 474 U.S. at 22 , 106 S.Ct. 292 (the confrontation clause offers no guaranty that every witness called by the prosecution will refrain from giving testimony that is "marred by forgetfulness"). ¶ 32 With regard to the third purpose, exposing the jury to the witness's demeanor, when the witness takes the stand and is asked about the events and hearsay statements, the fact finder can determine whether the witness is telling the truth about her lapse of memory or evading.

2006Owens, 484 U.S. at 560 ; see also Fensterer, 474 U.S. at 22 (the confrontation clause offers no guaranty that every witness called by the prosecution will refrain from giving testimony that is “marred by forgetfulness”). ¶32 With regard to the third purpose, exposing the jury to the witness’s demeanor, when the witness takes the stand and is asked about the events and hearsay statements, the fact finder can determine whether the witness is telling the truth about her lapse of memory or evading.

2024Crawford v. Washington, 541 U.S. 36, 59 , 124 S. Ct. 1354 , 158 L. Ed. 2d 177 (2004); see also State v. Burke, 196 Wn.2d 712, 725 , 478 P.3d 1096 (“The confrontation clause prohibits the admission of testimonial statements unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination.”), cert. denied, 142 S. Ct. 182 (2021).

2024Crawford v. Washington, 541 U.S. 36, 59 , 124 S. Ct. 1354 , 158 L. Ed. 2d 177 (2004); see also State v. Burke, 196 Wn.2d 712, 725 , 478 P.3d 1096 (“The confrontation clause prohibits the admission of testimonial statements unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination.”), cert. denied, 142 S. Ct. 182 (2021).

2026In Clark, our supreme court stated that “the admission of hearsay statements will not violate the confrontation clause if the hearsay declarant is a witness at trial, is asked about the event and the hearsay statement, and the defendant is provided an opportunity for full cross-examination.” Id. at 19 Houser argued in the trial court that AH was unavailable as a witness because she was unable to testify about the specific incidents and that corroborating evidence was required before her hearsay statements could be admitted. 37 159.

2018"The confrontation clause applies to the state courts through the Fourteenth Amendment." State v. Clark , 139 Wash.2d 152 , 157-58, 985 P.2d 377 (1999) (citing Pointer v. Texas , 380 U.S. 400 , 403, 85 S.Ct. 1065 , 13 L.Ed. 2d 923 (1965) ).

2024Thus, we determine the testimonial nature of N.C.-C.’s statements under the confrontation clause regardless of the fact that they were made to a 911 operator rather than a police officer. 9 In applying the primary purpose test, we “‘objectively evaluat[e] the statements and actions of the parties to the encounter, in light of the circumstances in which the interrogation occurs.’” Burke, 196 Wn.2d at 726 (quoting Bryant, 562 U.S. at 370 ).

2018But the Davis Court expressly declined to address whether statements made to individuals other than law enforcement officials could implicate the confrontation clause. 547 U.S. at 823 n.2, 126 S.Ct. 2266 . ¶ 53 Then in 2011, the Supreme Court decided Michigan v. Bryant . 3 In Bryant , the Court clarified that the primary purpose test was an objective test that requires "[a]n objective analysis of the circumstances of an encounter and the statements and actions of the parties to it," rather than "the subjective or actual purpose of the individuals involved in a particular encounter." 562 U.S. a

2010Thus, the confrontation clause gives defendants the right to confront those who make testimonial statements against them. 2 Crawford, 541 U.S. at 53-54 . ¶12 The Court declined to offer a comprehensive explanation of what makes a statement “testimonial,” but it listed three possible formulations for the “core class” of testimonial statements covered by the confrontation clause: “[(1)] ex parte in-court testimony or its functional equivalent— that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statemen

2010Thus, the confrontation clause gives defendants the right to confront those who make testimonial statements against them. 2 Crawford, 541 U.S. at 53-54 . ¶12 The Court declined to offer a comprehensive explanation of what makes a statement “testimonial,” but it listed three possible formulations for the “core class” of testimonial statements covered by the confrontation clause: “[(1)] ex parte in-court testimony or its functional equivalent— that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statemen