confrontation clause in Virginia

1999Although "Confrontation Clause error[ ] is subject to ... harmless error analysis[,] ... the correct inquiry is whether, assuming that the damaging potential of the [evidence] were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt." Delaware v. Van Arsdall, 475 U.S. 673, 684 , 106 S.Ct. 1431, 1438 , 89 L.Ed.2d 674 (1986).

1999Although "Confrontation Clause error[ ] is subject to ... harmless error analysis[,] ... the correct inquiry is whether, assuming that the damaging potential of the [evidence] were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt." Delaware v. Van Arsdall, 475 U.S. 673, 684 , 106 S.Ct. 1431, 1438 , 89 L.Ed.2d 674 (1986).

2008Even after Crawford , the Confrontation Clause does not bar the admission of testimonial hearsay statements if the declarant is unavailable, so long as the accused had a prior opportunity to cross-examine the witness. 541 U.S. at 68 , 124 S.Ct. 1354 .

2008Even after Crawford , the Confrontation Clause does not bar the admission of testimonial hearsay statements if the declarant is unavailable, so long as the accused had a prior opportunity to cross-examine the witness. 541 U.S. at 68 , 124 S.Ct. 1354 .

2023Campos, 67 Va. App. at 703 ; cf. Massey, 67 Va. App. at 130-31 (finding no Confrontation Clause violation where defendant had prior opportunity to cross-examine victim and introduced later-discovered impeachment materials at trial); see also California v. Green, 399 U.S. 149, 170 (1970) (holding trial court’s admission of transcript of victim’s preliminary hearing testimony did not violate the Confrontation Clause despite the victim’s extensive “lapse of memory”).

2023Campos, 67 Va. App. at 703 ; cf. Massey, 67 Va. App. at 130-31 (finding no Confrontation Clause violation where the defendant had a prior opportunity to cross-examine the victim and introduced later-discovered impeachment materials at trial); see also California v. Green, 399 U.S. 149, 170 (1970) (holding that the admission of a victim’s preliminary hearing testimony did not violate the Confrontation Clause despite the victim’s extensive “lapse of memory”).

2023Bista was convicted of two separate charges: one for aggravated sexual battery, and one for sodomy by anal penetration.38 To assess whether a constitutional error was harmless, we ask whether “absent the [constitutional error] is it clear beyond a reasonable doubt that the [factfinder] would have returned a verdict of guilty?” Commonwealth v. White, 293 Va. 411, 421 (2017) (quoting United States v. Hasting, 461 U.S. 499, 510-11 (1983)).

2023Bista was convicted of two separate charges: one for aggravated sexual battery, and one for sodomy by anal penetration.38 To assess whether a constitutional error was harmless, we ask whether “absent the [constitutional error] is it clear beyond a reasonable doubt that the [factfinder] would have returned a verdict of guilty?” Commonwealth v. White, 293 Va. 411, 421 (2017) (quoting United States v. Hasting, 461 U.S. 499, 510-11 (1983)).

2000An accomplice’s custodial confession that incriminates a codefendant is presumptively unreliable in the context of an alleged Confrontation Clause violation. .See Lilly v. Virginia, 527 U.S. 116 , —, 119 S.Ct. 1887, 1900 , 144 L.Ed.2d 117 (1999) (plurality opinion); Lee v. Illinois, 476 U.S. 530, 541-43 , 106 S.Ct. 2056, 2062-63 , 90 L.Ed.2d 514 (1986) (“[A] codefendant’s confession is presumptively unreliable as to the passages detailing the defendant’s conduct or culpability because those passages may well be the product of the codefendant’s desire to shift or spread blame, curry favor, aven

2000An accomplice’s custodial confession that incriminates a codefendant is presumptively unreliable in the context of an alleged Confrontation Clause violation. .See Lilly v. Virginia, 527 U.S. 116 , —, 119 S.Ct. 1887, 1900 , 144 L.Ed.2d 117 (1999) (plurality opinion); Lee v. Illinois, 476 U.S. 530, 541-43 , 106 S.Ct. 2056, 2062-63 , 90 L.Ed.2d 514 (1986) (“[A] codefendant’s confession is presumptively unreliable as to the passages detailing the defendant’s conduct or culpability because those passages may well be the product of the codefendant’s desire to shift or spread blame, curry favor, aven

2000An accomplice’s custodial confession that incriminates a codefendant is presumptively unreliable in the context of an alleged Confrontation Clause violation. .See Lilly v. Virginia, 527 U.S. 116 , —, 119 S.Ct. 1887, 1900 , 144 L.Ed.2d 117 (1999) (plurality opinion); Lee v. Illinois, 476 U.S. 530, 541-43 , 106 S.Ct. 2056, 2062-63 , 90 L.Ed.2d 514 (1986) (“[A] codefendant’s confession is presumptively unreliable as to the passages detailing the defendant’s conduct or culpability because those passages may well be the product of the codefendant’s desire to shift or spread blame, curry favor, aven

2000An accomplice’s custodial confession that incriminates a codefendant is presumptively unreliable in the context of an alleged Confrontation Clause violation. .See Lilly v. Virginia, 527 U.S. 116 , —, 119 S.Ct. 1887, 1900 , 144 L.Ed.2d 117 (1999) (plurality opinion); Lee v. Illinois, 476 U.S. 530, 541-43 , 106 S.Ct. 2056, 2062-63 , 90 L.Ed.2d 514 (1986) (“[A] codefendant’s confession is presumptively unreliable as to the passages detailing the defendant’s conduct or culpability because those passages may well be the product of the codefendant’s desire to shift or spread blame, curry favor, aven

2013Prior to Crawford, the United States Supreme Court “took the view that the Confrontation Clause did not bar the admission of an out-of-court statement that fell within a firmly rooted exception to the hearsay rule.” Williams , — U.S. at -, 132 S.Ct. at 2232 (citing Ohio v. Roberts, 448 U.S. 56, 66 , 100 S.Ct. 2531, 2539 , 65 L.Ed.2d 597 (1980)).

2013Prior to Crawford, the United States Supreme Court “took the view that the Confrontation Clause did not bar the admission of an out-of-court statement that fell within a firmly rooted exception to the hearsay rule.” Williams , — U.S. at -, 132 S.Ct. at 2232 (citing Ohio v. Roberts, 448 U.S. 56, 66 , 100 S.Ct. 2531, 2539 , 65 L.Ed.2d 597 (1980)).

2023Campos, 67 Va. App. at 703 ; cf. Massey, 67 Va. App. at 130-31 (finding no Confrontation Clause violation where defendant had prior opportunity to cross-examine victim and introduced later-discovered impeachment materials at trial); see also California v. Green, 399 U.S. 149, 170 (1970) (holding trial court’s admission of transcript of victim’s preliminary hearing testimony did not violate the Confrontation Clause despite the victim’s extensive “lapse of memory”).

2023Campos, 67 Va. App. at 703 ; cf. Massey, 67 Va. App. at 130-31 (finding no Confrontation Clause violation where the defendant had a prior opportunity to cross-examine the victim and introduced later-discovered impeachment materials at trial); see also California v. Green, 399 U.S. 149, 170 (1970) (holding that the admission of a victim’s preliminary hearing testimony did not violate the Confrontation Clause despite the victim’s extensive “lapse of memory”).

2023Bista was convicted of two separate charges: one for aggravated sexual battery, and one for sodomy by anal penetration.38 To assess whether a constitutional error was harmless, we ask whether “absent the [constitutional error] is it clear beyond a reasonable doubt that the [factfinder] would have returned a verdict of guilty?” Commonwealth v. White, 293 Va. 411, 421 (2017) (quoting United States v. Hasting, 461 U.S. 499, 510-11 (1983)).

2023Bista was convicted of two separate charges: one for aggravated sexual battery, and one for sodomy by anal penetration.38 To assess whether a constitutional error was harmless, we ask whether “absent the [constitutional error] is it clear beyond a reasonable doubt that the [factfinder] would have returned a verdict of guilty?” Commonwealth v. White, 293 Va. 411, 421 (2017) (quoting United States v. Hasting, 461 U.S. 499, 510-11 (1983)).

2022Cox v. Commonwealth, 65 Va. App. 506 (2015); see also Henderson v. Commonwealth, 59 Va. App. 641 , 665 n.5 (2012) (en banc); Roseborough v. Commonwealth, 55 Va. App. 653, 668-69 (2010), overruled on other grounds, 281 Va. 233 (2011).

2022Cox v. Commonwealth, 65 Va. App. 506 (2015); see also Henderson v. Commonwealth, 59 Va. App. 641 , 665 n.5 (2012) (en banc); Roseborough v. Commonwealth, 55 Va. App. 653, 668-69 (2010), overruled on other grounds, 281 Va. 233 (2011).

2022Cox v. Commonwealth, 65 Va. App. 506 (2015); see also Henderson v. Commonwealth, 59 Va. App. 641 , 665 n.5 (2012) (en banc); Roseborough v. Commonwealth, 55 Va. App. 653, 668-69 (2010), overruled on other grounds, 281 Va. 233 (2011).

2022Cox v. Commonwealth, 65 Va. App. 506 (2015); see also Henderson v. Commonwealth, 59 Va. App. 641 , 665 n.5 (2012) (en banc); Roseborough v. Commonwealth, 55 Va. App. 653, 668-69 (2010), overruled on other grounds, 281 Va. 233 (2011).

2000"Confrontation Clause error is a federal constitutional error subject to harmless error analysis." Id. at 387 , 523 S.E.2d at 541 .

2000"Confrontation Clause error is a federal constitutional error subject to harmless error analysis." Id. at 387 , 523 S.E.2d at 541 .

2020See Kirby v. United States, 174 U.S. 47, 54-55 (1899) (holding admission of a conviction order does not violate the Confrontation Clause when - 22 - admitted to prove only the existence of a prior conviction), cited with approval by Melendez-Diaz, 557 U.S. at 314 , and Davis, 547 U.S. at 825 ; see also Melendez-Diaz, 557 U.S. at 322 (noting that clerk’s certifications are excepted from the Confrontation Clause); Dowdell v. United States, 221 U.S. 325 (1911) (rejecting a Confrontation Clause challenge to a judge and clerk’s statements that the defendant was present in the courtroom at a prior t

2020See Kirby v. United States, 174 U.S. 47, 54-55 (1899) (holding admission of a conviction order does not violate the Confrontation Clause when - 22 - admitted to prove only the existence of a prior conviction), cited with approval by Melendez-Diaz, 557 U.S. at 314 , and Davis, 547 U.S. at 825 ; see also Melendez-Diaz, 557 U.S. at 322 (noting that clerk’s certifications are excepted from the Confrontation Clause); Dowdell v. United States, 221 U.S. 325 (1911) (rejecting a Confrontation Clause challenge to a judge and clerk’s statements that the defendant was present in the courtroom at a prior t

2013See United States v. Summers, 666 F.3d 192, 201-04 (4th Cir.2011) (the Confrontation Clause did not require the lab analyst who produced raw data to be present at trial for the appellant to confront him); cf. United States v. Ignasiak, 667 F.3d 1217, 1230-31 (11th Cir.2012) (Confrontation Clause violation where the doctor who testified at trial did not "personally observe or participate” in the autopsies); and United States v. Ramos-Gonzalez, 664 F.3d 1, 5 (1st Cir.2011) (interpreting Bullcoming and stating, "where a testimonial certified forensic lab report is offered for its truth as evidenc

2013Therefore, unlike the challenged testimony in Bullcoming, Holcomb testified to her firsthand knowledge of the creation of the exhibits and did not provide “surrogate testimony.” 3 Dishman did nothing beyond a recordation function, supervised and observed by a competent witness who 2 See United States v. Summers, 666 F.3d 192, 201-04 (4th Cir. 2011) (the Confrontation Clause did not require the lab analyst who produced raw data to be present at trial for the appellant to confront him); cf. United States v. Ignasiak, 667 F.3d 1217, 1230-31 (11th Cir. 2012) (Confrontation Clause violation where t

2013See United States v. Summers, 666 F.3d 192, 201-04 (4th Cir.2011) (the Confrontation Clause did not require the lab analyst who produced raw data to be present at trial for the appellant to confront him); cf. United States v. Ignasiak, 667 F.3d 1217, 1230-31 (11th Cir.2012) (Confrontation Clause violation where the doctor who testified at trial did not "personally observe or participate” in the autopsies); and United States v. Ramos-Gonzalez, 664 F.3d 1, 5 (1st Cir.2011) (interpreting Bullcoming and stating, "where a testimonial certified forensic lab report is offered for its truth as evidenc

2013Therefore, unlike the challenged testimony in Bullcoming, Holcomb testified to her firsthand knowledge of the creation of the exhibits and did not provide “surrogate testimony.” 3 Dishman did nothing beyond a recordation function, supervised and observed by a competent witness who 2 See United States v. Summers, 666 F.3d 192, 201-04 (4th Cir. 2011) (the Confrontation Clause did not require the lab analyst who produced raw data to be present at trial for the appellant to confront him); cf. United States v. Ignasiak, 667 F.3d 1217, 1230-31 (11th Cir. 2012) (Confrontation Clause violation where t

2013In concluding there was no Confrontation Clause violation in that case, the Supreme Court noted that the certificates of analysis that were admitted “did not contain the results of [the first non-testifying examiner’s] work product in any form, much less her ‘declaration[s]’ or ‘affirmation[s].’” Id. at 333 , 699 S.E.2d at 221 (second and third alterations in original).

2013In concluding there was no Confrontation Clause violation in that case, the Supreme Court noted that the certificates of analysis that were admitted “did not contain the results of [the first non-testifying examiner’s] work product in any form, much less her ‘declaration[s]’ or ‘affirmation[s].’” Id. at 333 , 699 S.E.2d at 221 (second and third alterations in original).

2013See United States v. Summers, 666 F.3d 192, 201-04 (4th Cir.2011) (the Confrontation Clause did not require the lab analyst who produced raw data to be present at trial for the appellant to confront him); cf. United States v. Ignasiak, 667 F.3d 1217, 1230-31 (11th Cir.2012) (Confrontation Clause violation where the doctor who testified at trial did not "personally observe or participate” in the autopsies); and United States v. Ramos-Gonzalez, 664 F.3d 1, 5 (1st Cir.2011) (interpreting Bullcoming and stating, "where a testimonial certified forensic lab report is offered for its truth as evidenc

2013Therefore, unlike the challenged testimony in Bullcoming, Holcomb testified to her firsthand knowledge of the creation of the exhibits and did not provide “surrogate testimony.” 3 Dishman did nothing beyond a recordation function, supervised and observed by a competent witness who 2 See United States v. Summers, 666 F.3d 192, 201-04 (4th Cir. 2011) (the Confrontation Clause did not require the lab analyst who produced raw data to be present at trial for the appellant to confront him); cf. United States v. Ignasiak, 667 F.3d 1217, 1230-31 (11th Cir. 2012) (Confrontation Clause violation where t

2008“We generally defer to trial judges on this subject because they, unlike us, participate first person in the evidentiary process and acquire 77, 79 (2000) (finding alleged violation of Confrontation Clause rendered harmless because challenged evidence was cumulative of other, properly admitted evidence); Dearing v. Commonwealth, 260 Va. 671, 674 , 536 S.E.2d 903, 904 (2000) (finding Confrontation Clause violation harmless because the challenged “testimony was merely cumulative of the other evidence adduced by the Commonwealth”); Greenway v. Commonwealth, 254 Va. 147, 154 , 487 S.E.2d 224, 228

2008“We generally defer to trial judges on this subject because they, unlike us, participate first person in the evidentiary process and acquire 77, 79 (2000) (finding alleged violation of Confrontation Clause rendered harmless because challenged evidence was cumulative of other, properly admitted evidence); Dearing v. Commonwealth, 260 Va. 671, 674 , 536 S.E.2d 903, 904 (2000) (finding Confrontation Clause violation harmless because the challenged “testimony was merely cumulative of the other evidence adduced by the Commonwealth”); Greenway v. Commonwealth, 254 Va. 147, 154 , 487 S.E.2d 224, 228

2006See Sacher v. United States, 343 U.S. 1, 11-13 (1952) (affirming trial judge’s summary adjudication of direct criminal contempt pursuant to Fed.

2006See Sacher v. United States, 343 U.S. 1, 11-13 , 72 S.Ct. 451, 456-57 , 96 L.Ed. 717 (1952) (affirming trial judge's summary adjudication of direct criminal contempt pursuant to Fed.

2006We succinctly addressed in Williams v. Commonwealth, 32 Va.App. 395 , 528 S.E.2d 166 (2000), the contours of the analysis required when a Confrontation Clause error occurs. *83 Constitutional error is harmless . . . only if "the beneficiary of the constitutional error. . . proves beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Chapman v. California, 386 U.S. 18, 24 [, 87 S.Ct. 824, 828 , 17 L.Ed.2d 705 ] (1967).

2006We succinctly addressed in Williams v. Commonwealth, 32 Va.App. 395 , 528 S.E.2d 166 (2000), the contours of the analysis required when a Confrontation Clause error occurs. *83 Constitutional error is harmless . . . only if "the beneficiary of the constitutional error. . . proves beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Chapman v. California, 386 U.S. 18, 24 [, 87 S.Ct. 824, 828 , 17 L.Ed.2d 705 ] (1967).

2006Id. at 372, 373, 417 S.E.2d at 894 (emphasis added).

2006Id. at 372, 373, 417 S.E.2d at 894 (emphasis added).

2020See Kirby v. United States, 174 U.S. 47, 54-55 (1899) (holding admission of a conviction order does not violate the Confrontation Clause when - 22 - admitted to prove only the existence of a prior conviction), cited with approval by Melendez-Diaz, 557 U.S. at 314 , and Davis, 547 U.S. at 825 ; see also Melendez-Diaz, 557 U.S. at 322 (noting that clerk’s certifications are excepted from the Confrontation Clause); Dowdell v. United States, 221 U.S. 325 (1911) (rejecting a Confrontation Clause challenge to a judge and clerk’s statements that the defendant was present in the courtroom at a prior t

2020See Kirby v. United States, 174 U.S. 47, 54-55 (1899) (holding admission of a conviction order does not violate the Confrontation Clause when - 22 - admitted to prove only the existence of a prior conviction), cited with approval by Melendez-Diaz, 557 U.S. at 314 , and Davis, 547 U.S. at 825 ; see also Melendez-Diaz, 557 U.S. at 322 (noting that clerk’s certifications are excepted from the Confrontation Clause); Dowdell v. United States, 221 U.S. 325 (1911) (rejecting a Confrontation Clause challenge to a judge and clerk’s statements that the defendant was present in the courtroom at a prior t

2019Similarly, the government bears the burden of defeating [the defendant's] properly raised Confrontation Clause objection."); see also Bullcoming , 564 U.S. at 666 , 131 S.Ct. 2705 (noting the prosecution bears the burden of proving its evidence complies with the Sixth Amendment's Confrontation Clause).

2019Similarly, the government bears the burden of defeating [the defendant's] properly raised Confrontation Clause objection."); see also Bullcoming , 564 U.S. at 666 , 131 S.Ct. 2705 (noting the prosecution bears the burden of proving its evidence complies with the Sixth Amendment's Confrontation Clause).

2019See Rules 5A:12(c)(1)(i), 5A:18; see also Riner v. Commonwealth, 268 Va. 296 , 325 n.11 (2004) (recognizing under Rule 5:25, the Supreme Court equivalent of Court of Appeals Rule 5A:18, that a hearsay objection does not preserve a Confrontation Clause objection for appeal); Anaman v. Commonwealth, 64 Va. App. 379 , 388 n.5 (2015) (applying Rule 5A:12(c)(1)(i) to reject a second-level hearsay argument because the appellant “did not include [it] within any of his assignments of error”). -6- evidence is substantially the same as his opponent’s, he can complain on appeal about neither.” Isaac v. C

2006Rule 5A:18; see Juniper v. Commonwealth, 271 Va. 362, 387 , 626 S.E.2d 383, 400 (2006) (holding that an assertion of a "due process violation” in the trial court, without more, does not preserve for appeal a "claim under the Sixth Amendment Confrontation Clause”); Riner v. Commonwealth, 268 Va. 296 , 325 n. 11, 601 S.E.2d 555 , 572 n. 11 (2004) (finding waiver where appellant failed to "mention the Sixth Amendment or the Confrontation Clause" at trial); Husske v. Commonwealth, 252 Va. 203 , 213 n. *, 476 S.E.2d 920 , 926 n. * (1996) (holding Confrontation Clause claim waived when not expressly

2008The Sixth Amendment’s Confrontation Clause, a “procedural guarantee” that also “applies to state prosecutions,” Michels v. Commonwealth, 47 Va. App. 461, 466 , 624 S.E.2d 675, 678 (2006), provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him,” U.S. Const. amend.

2008The Sixth Amendment’s Confrontation Clause, a “procedural guarantee” that also “applies to state prosecutions,” Michels v. Commonwealth, 47 Va. App. 461, 466 , 624 S.E.2d 675, 678 (2006), provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him,” U.S. Const. amend.

2007Further, we recognize that “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.” Barber v. Page, 390 U.S. 719, 724-25 , 88 S.Ct. 1318, 1321-22 , 20 L.Ed.2d 255 (1968).

2007Further, we recognize that “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.” Barber v. Page, 390 U.S. 719, 724-25 , 88 S.Ct. 1318, 1321-22 , 20 L.Ed.2d 255 (1968).