confrontation clause in Ohio

2026As explained by the Ohio Supreme Court in State v. Smith, 2024- Ohio-5745, ¶ 33: The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” In Crawford v. Washington, 541 U.S. 36 , (2004), the United States Supreme Court explained that the key question for determining whether a Confrontation Clause violation has occurred is whether an out-of-court statement is ‘testimonial.’” Id. at 59, 68 .

2026As explained by the Ohio Supreme Court in State v. Smith, 2024- Ohio-5745, ¶ 33: The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” In Crawford v. Washington, 541 U.S. 36 , (2004), the United States Supreme Court explained that the key question for determining whether a Confrontation Clause violation has occurred is whether an out-of-court statement is ‘testimonial.’” Id. at 59, 68 .

2025Confrontation Clause violations are harmless when “ ‘the remaining evidence, standing alone, constitutes overwhelming proof of [the] defendant’s guilt.’ ” State v. Hood, 2012-Ohio-6208, ¶ 43 , quoting State v. Williams, 6 Ohio St.3d 281 (1983), paragraph six of the syllabus; accord Carter at ¶ 47; State v. Moritz, 63 Ohio St.2d 150 (1980), paragraph two of the syllabus (“A violation of an accused’s right to confrontation and cross-examination is not prejudicial where there is sufficient independent evidence of an accused’s guilt to render improperly admitted statements harmless beyond a reason

2021“A reviewing court may overlook an error where the remaining admissible evidence, standing alone, constitutes ‘overwhelming’ proof of a defendant’s guilt.” State v. Oliver, 2018-Ohio-3667 , 112 N.E.3d 573, ¶ 25 (8th Dist.), citing State v. Williams, 6 Ohio St.3d 281, 290 , 452 N.E.2d 1323 (1983).

2025The Ninth Circuit found a Confrontation Clause violation; the Supreme Court reversed, holding that “the Confrontation Clause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Id. at 559 quoting Kentucky v. Stincer, 482 U.S. 730, 739 (1987), and Delaware v. Fensterer, 474 U.S. 15, 19-20 (1985).

2025The Ninth Circuit found a Confrontation Clause violation; the Supreme Court reversed, holding that “the Confrontation Clause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Id. at 559 quoting Kentucky v. Stincer, 482 U.S. 730, 739 (1987), and Delaware v. Fensterer, 474 U.S. 15, 19-20 (1985).

2024“It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation clause.” Davis v. Washington, 547 U.S. 813, 821 . {¶ 62} “Although the Crawford Court did not specifically define the term ‘testimonial,’ it explained that hearsay statements are implicated by the Confrontation Clause when they are ‘made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.’” Boyce at ¶ 12 , quoting

2014Thus, Maxwell argues that Dr. Felo’s testimony and the introduction of the autopsy report resulted in a Confrontation Clause violation because the 13 SUPREME COURT OF OHIO purpose was “ ‘ “to establish or prove past events potentially relevant to later criminal prosecutions,” ’ ” quoting Williams, 132 S.Ct. at 2251 , 183 L.Ed.2d 89 (Breyer, J., concurring), quoting Davis, 547 U.S. at 822 , 126 S.Ct. 2266 , 165 L.Ed.2d 224 .

2024Michigan v. Bryant, 562 U.S. 344, 358-359 (2011). {¶54} A trial court does not violate the confrontation clause by admitting a prior testimonial statement, including one made to police, where the witness testified subject Case No. 24 JE 0001 – 18 – to cross-examination at trial, even if the statement was offered during the testimony of a different witness.

2022Id. 5 OHIO FIRST DISTRICT COURT OF APPEALS {¶11} Even if the trial court committed a hearsay or Confrontation Clause error by admitting out-of-court statements identifying Mr. Smith as the perpetrator, such an error would be harmless because the state provided overwhelming admissible evidence establishing that Mr. Smith committed the crime.

2025While “[t]he Sixth Amendment’s Confrontation Clause precludes a trial court from placing ‘improper restrictions’ on defense cross-examination,” it 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.’” (Emphasis in original.) Id., quoting Pennsylvania v. Ritchie, 480 U.S. 39, 52 (1987) -20- Case No. 9-23-83 and Delaware v. Fensterer, 474 U.S. 15, 20 (1985); see also Evid.R. 611(B) (scope of cross-examination). {¶40} “To establish a Confrontation Clause violation, [the defendant]

2025While “[t]he Sixth Amendment’s Confrontation Clause precludes a trial court from placing ‘improper restrictions’ on defense cross-examination,” it 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.’” (Emphasis in original.) Id., quoting Pennsylvania v. Ritchie, 480 U.S. 39, 52 (1987) -20- Case No. 9-23-83 and Delaware v. Fensterer, 474 U.S. 15, 20 (1985); see also Evid.R. 611(B) (scope of cross-examination). {¶40} “To establish a Confrontation Clause violation, [the defendant]

2024Even assuming a violation occurred, such error could only be construed as harmless where there is “no 17. reasonable possibility that the improperly admitted evidence contributed to the conviction * * * the alleged confrontation error was harmless beyond a reasonable doubt.” (Citation omitted.) State v. McKelton, 148 Ohio St.3d 261 , 2016-Ohio-5735 , 70 N.E.3d 508, ¶ 192 . {¶ 39} Appellant’s claim of a Confrontation Clause violation, accordingly, would not require reversal even if we determined such a violation occurred. 3.

2024Even assuming a violation occurred, such error could only be construed as harmless where there is “no 17. reasonable possibility that the improperly admitted evidence contributed to the conviction * * * the alleged confrontation error was harmless beyond a reasonable doubt.” (Citation omitted.) State v. McKelton, 148 Ohio St.3d 261 , 2016-Ohio-5735 , 70 N.E.3d 508, ¶ 192 . {¶ 39} Appellant’s claim of a Confrontation Clause violation, accordingly, would not require reversal even if we determined such a violation occurred. 3.

2025Apr. 16, 1998), citing State v. Moritz, 63 Ohio St.2d 150 (1980), paragraph one of the syllabus (“An accused’s right of cross-examination secured by the confrontation clause of the Sixth Amendment is violated in a joint trial with a non-testifying codefendant by the admission of extrajudicial statements made by the codefendant inculpating the accused.”). {¶ 47} The State argues that Bruton was not violated because Quinn was merely having a conversation with Sergeant Lawson—she did not make a confession.

2014The rationale of Bruton was that the introduction of a potentially unreliable confession of one defendant which implicates another defendant without being subject to cross-examination deprives the latter defendant of his right to confrontation guaranteed by the Sixth Amendment.” Id. at 153 , quoting United States v. Fleming, 594 F.2d 598, 602 (7th Cir.1979). {¶ 38} In following Bruton, the Supreme Court of Ohio likewise held that “[a]n accused’s right of cross-examination secured by the confrontation clause of the Sixth Amendment is violated in a joint trial with a non-testifying codefendant b

2026Bullcoming v. New Mexico, 564 U.S. 647, 659 (2011), fn. 6. -13- Case No. 14-25-13 “Nevertheless, “[t]here is also no dispute that the Confrontation Clause ‘does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.’” State v. Ricks, 2013-Ohio-3712, ¶ 18 , quoting Crawford at 59 . {¶25} The Supreme Court of Ohio, in applying the Confrontation Clause analysis to statements made during CAC interviews, distinguishes admissibility based on the interview’s primary purpose.

2026Bullcoming v. New Mexico, 564 U.S. 647, 659 (2011), fn. 6. -13- Case No. 14-25-13 “Nevertheless, “[t]here is also no dispute that the Confrontation Clause ‘does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.’” State v. Ricks, 2013-Ohio-3712, ¶ 18 , quoting Crawford at 59 . {¶25} The Supreme Court of Ohio, in applying the Confrontation Clause analysis to statements made during CAC interviews, distinguishes admissibility based on the interview’s primary purpose.

2023Cuyahoga No. 99485, 2014-Ohio-1228, ¶ 29 ; see also Smith, 2019-Ohio-3257 , 141 N.E.3d 590 , at ¶ 10 (“Although the rule against hearsay and the Confrontation Clause are ‘generally designed to protect similar ideals, * * * the Confrontation Clause may bar the admission of evidence that would otherwise be admissible under an exception to the hearsay rule.”’), quoting State v. Issa, 93 Ohio St.3d 49, 60 , 752 N.E.2d 904 (2001).

2023Cuyahoga No. 99485, 2014-Ohio-1228, ¶ 29 ; see also Smith, 2019-Ohio-3257 , 141 N.E.3d 590 , at ¶ 10 (“Although the rule against hearsay and the Confrontation Clause are ‘generally designed to protect similar ideals, * * * the Confrontation Clause may bar the admission of evidence that would otherwise be admissible under an exception to the hearsay rule.”’), quoting State v. Issa, 93 Ohio St.3d 49, 60 , 752 N.E.2d 904 (2001).

2025In the due process context, the Ohio Supreme Court has recognized that relevant corroborating circumstances include not only those surrounding the actual making of the statement but also any other corroborating evidence. [State v.] Yarbrough, 95 Ohio St.3d [227, ] 238, 767 N.E.2d 216, fn. 2 (“Although ‘the fact that other evidence corroborates the statement is irrelevant’ to the Confrontation Clause analysis when the state attempts to introduce a statement against interest * * *, the same is not true when the defense attempts to introduce such a statement as a matter of due process”); see, als

2025In the due process context, the Ohio Supreme Court has recognized that relevant corroborating circumstances include not only those surrounding the actual making of the statement but also any other corroborating evidence. [State v.] Yarbrough, 95 Ohio St.3d [227, ] 238, 767 N.E.2d 216, fn. 2 (“Although ‘the fact that other evidence corroborates the statement is irrelevant’ to the Confrontation Clause analysis when the state attempts to introduce a statement against interest * * *, the same is not true when the defense attempts to introduce such a statement as a matter of due process”); see, als

2025In Craig, the Supreme Court of the United States (“SCOTUS”) held that this right is not absolute, is case-specific, and “must occasionally” give deference to public policy “where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.” Id. at 849, 850 . {¶40} As the Supreme Court of Ohio (“SCO”) recently pointed out, in a case subsequent to Craig, Crawford v. Washington, 541 U.S. 36 (2004), the SCOTUS cast doubt on its holding in Craig and held that the Confrontation Clause “prohibited the use of out-

2025In Craig, the Supreme Court of the United States (“SCOTUS”) held that this right is not absolute, is case-specific, and “must occasionally” give deference to public policy “where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.” Id. at 849, 850 . {¶40} As the Supreme Court of Ohio (“SCO”) recently pointed out, in a case subsequent to Craig, Crawford v. Washington, 541 U.S. 36 (2004), the SCOTUS cast doubt on its holding in Craig and held that the Confrontation Clause “prohibited the use of out-

2022Monroe No. 16 MO 0002, 2018-Ohio-1139 , 108 N.E.3d 1115, ¶ 72-75 (victim’s statements to relatives), citing Ohio v. Clark, 576 U.S. 237 , 135 S.Ct. 2173, 2181 , 192 L.Ed.2d 306 (2015) (a statement cannot fall within the confrontation clause unless its primary purpose was testimonial); Giles v. California, 554 U.S. 353, 376 , 128 S.Ct. 2678 , 171 L.Ed.2d 488 (2008) (statements to friends not subject to confrontation clause); State v. McKelton, 148 Ohio St.3d 261 , 2016-Ohio-5735 , 70 N.E.3d 508, ¶ 185 (statement of defendant’s daughter to the victim’s niece was non-testimonial).

2022Monroe No. 16 MO 0002, 2018-Ohio-1139 , 108 N.E.3d 1115, ¶ 72-75 (victim’s statements to relatives), citing Ohio v. Clark, 576 U.S. 237 , 135 S.Ct. 2173, 2181 , 192 L.Ed.2d 306 (2015) (a statement cannot fall within the confrontation clause unless its primary purpose was testimonial); Giles v. California, 554 U.S. 353, 376 , 128 S.Ct. 2678 , 171 L.Ed.2d 488 (2008) (statements to friends not subject to confrontation clause); State v. McKelton, 148 Ohio St.3d 261 , 2016-Ohio-5735 , 70 N.E.3d 508, ¶ 185 (statement of defendant’s daughter to the victim’s niece was non-testimonial).

2021See also State v. Stahl, 111 Ohio St.3d 186 , 2006-Ohio-5482 , 855 N.E.2d 834 , at paragraph two of the syllabus. {¶40} In the case at bar, we find that any statements made by the confidential informant on the recordings to be non-testimonial in nature, and thus, the Confrontation Clause does not bar them.

2021See also State v. Stahl, 111 Ohio St.3d 186 , 2006-Ohio-5482 , 855 N.E.2d 834 , at paragraph two of the syllabus. {¶40} In the case at bar, we find that any statements made by the confidential informant on the recordings to be non-testimonial in nature, and thus, the Confrontation Clause does not bar them.

2026State v. Issa, 2001-Ohio-1290 . -6- Case No. 1-25-57 Analysis {¶14} The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” Section 10, Article I of the Ohio Constitution, which includes the right “to meet face to face” provides “no greater right of confrontation than the Sixth Amendment.” State v. Self, 56 Ohio St.3d 73, 79 (1990). {¶15} Under the Confrontation Clause, testimonial out-of-court statements are prohibited, unless the w

2022State v. Self, 56 Ohio St.3d 73, 76 , 564 N.E.2d 446 (1990). {¶80} The Sixth Amendment to the United States Constitution states in part: “In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him * * *.” U.S. Constitution, Amendment VI. {¶81} The Ohio Constitution states in pertinent part: “In any trial, in any court, the party accused shall be allowed * * * to meet the witnesses face to face * * *.” Ohio Constitution, Article I, Section 10.

2026State v. Hartman, 2016-Ohio-2883, ¶ 83 (2d Dist.) (citing Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), for the proposition that “state statutes, such as R.C. 2925.51, do not run afoul of the confrontation clause when the effect of the statute is only to establish the procedural timing of when the [confrontation] right must be exercised”). {¶ 33} Second, assuming purely arguendo that it was error to establish the existence of cocaine through the sergeant’s reference to a lab report, reversal based on legally insufficient evidence still would be improper.

2018See also State v. Hartman, 2016-Ohio-2883 , 53 N.E.3d 519, ¶ 83 (2d Dist.) (“The U.S. Supreme Court in Melendez-Diaz, supra, commented that state statutes, such as R.C. 2925.51, do not run afoul of the confrontation clause when the effect of the statute is only to establish the procedural timing of when the right must be exercised.”). {¶ 29} At trial, the State asked the trial court to admit a laboratory report prepared by Michele Taylor, a forensic scientist with the Bureau of Criminal Investigation.

2025The Supreme Court held that there was no Confrontation Clause violation, explaining as follows: “[W]hen the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. * * * The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it.” Crawford v. Washington (2004), 541 U.S. 36, 59 , 124 S.Ct. 1354 , 158 L.Ed.2d 177, fn. 9 , citing California v. Green (1970), 399 U.S. 149, 162 , 90 S.Ct. 1930 , 26 L.Ed.2d 489 .

2025The Supreme Court held that there was no Confrontation Clause violation, explaining as follows: “[W]hen the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. * * * The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it.” Crawford v. Washington (2004), 541 U.S. 36, 59 , 124 S.Ct. 1354 , 158 L.Ed.2d 177, fn. 9 , citing California v. Green (1970), 399 U.S. 149, 162 , 90 S.Ct. 1930 , 26 L.Ed.2d 489 .

2021A confrontation clause problem arises from the statement of a codefendant at a joint trial "only when the trial court admits into evidence a non-testifying defendant's statement that implicates the other defendant in criminal activity." Walters at ¶ 27, citing Bruton v. United States, 391 U.S. 123 (1968).

2018State v. Carter , 7th Dist., 2017-Ohio-7501 , 96 N.E.3d 1046 , ¶¶ 37-39 ("As subsequent federal and Ohio state decisions have been rendered limiting the confrontation clause's application to testimonial statements, prior principles must be viewed under the lens of the intervening precedent"), addressing Bruton v. United States , 391 U.S. 123 , 137, 88 S.Ct. 1620 , 20 L.Ed.2d 476 (1968).

2016See Madrigal, 87 Ohio St.3d at 388 (determining that admission of evidence despite Confrontation Clause violation was harmless since other witnesses testified to the same facts giving rise to the defendant’s conviction); McNair, 2015-Ohio-2980, at ¶ 34 (concluding that remaining evidence established the defendant’s guilt and thus any error in the admission of evidence that violated the Confrontation Clause was harmless). {¶26} Accordingly, we overrule Person’s second assignment of error. 13 Assignment of Error I The trial court erred as a matter of law in imposing separate sentences upon Perso

2005Therefore, the admission of the hearsay statements of Mrs. Goff violated Appellant's Sixth Amendment right to confront the witnesses against him. {¶ 12} We must now determine whether the Confrontation Clause error was "`harmless beyond a reasonable doubt.'" State v. Madrigal (2000), 87 Ohio St.3d 378 , 388 .