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 .

2022See State v. Ash, 7th Dist. Monroe 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-t

2022See State v. Ash, 7th Dist. Monroe 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-t

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).

2024See State v. Wilcox, 1st Dist. Hamilton No. C-220472, 2023-Ohio-2940, ¶ 16 (noting that witness statements made voluntarily and not in response to police questioning or formal proceedings were nontestimonial); but see Davis, 547 U.S. at 823, fn. 1 (noting that volunteered statements are not necessarily nontestimonial).

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

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).

2026To sustain a Confrontation Clause violation, the defendant must demonstrate that he or she “was ‘prohibited from engaging in otherwise appropriate cross-examination’” and that a reasonable trier of fact “‘might have received a significantly different impression of [the 13 witness’s] credibility had [the defendant’s counsel] been permitted to pursue their proposed line of cross-examination.’” (Bracketed text in original.) State v. Warmus, 2011-Ohio-5827, ¶ 64 (8th Dist.), quoting Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986).

2026To sustain a Confrontation Clause violation, the defendant must demonstrate that he or she “was ‘prohibited from engaging in otherwise appropriate cross-examination’” and that a reasonable trier of fact “‘might have received a significantly different impression of [the 13 witness’s] credibility had [the defendant’s counsel] been permitted to pursue their proposed line of cross-examination.’” (Bracketed text in original.) State v. Warmus, 2011-Ohio-5827, ¶ 64 (8th Dist.), quoting Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986).

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.

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 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.

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- “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- “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.

2026“The Confrontation Clause of the Sixth Amendment to the United States Constitution gives the accused the right to be confronted with the witnesses against him [or her].” State v. Lang, 2011-Ohio-4215, ¶ 83.

2019Vol. I at 50. {¶ 31} Binding precedent establishes that where a witness testifies at trial and was subject to cross-examination, the confrontation clause does not bar use of her earlier statements. " '[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.' " State v. Lang, 129 Ohio St.3d 512, 529 , 2011- Ohio-4215, quoting Crawford v. Washington, 541 U.S. 36, 59, f

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.

2026In State v. Craig, 2006-Ohio-4571 , the Supreme Court of Ohio stated that business records “‘are not testimonial in nature because they are prepared in the ordinary course of regularly conducted business and are “by their nature” not prepared for litigation.’” Id. at ¶ 82, quoting People v. Durio, 794 N.Y.S.2d 863 (2005). {¶65} The United States Supreme Court, however, clarified that a Confrontation Clause issue can arise “if the regularly conducted business activity is the production of evidence for use at trial.” Melendez-Diaz v. Massachusetts, 557 U.S. 305, 321 (2009).

2023“Whenever the state seeks to introduce hearsay into a criminal proceeding, the court must determine not only whether the evidence fits within an exception, but also whether the introduction of such evidence offends an accused’s right to confront witnesses against him.” State v. Powell, 2019-Ohio-4345 , 134 N.E.3d 1270 , ¶ 38 (8th Dist.), citing State v. Kilbane, 8th Dist. Cuyahoga 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, * * * th

2023“Whenever the state seeks to introduce hearsay into a criminal proceeding, the court must determine not only whether the evidence fits within an exception, but also whether the introduction of such evidence offends an accused’s right to confront witnesses against him.” State v. Powell, 2019-Ohio-4345 , 134 N.E.3d 1270 , ¶ 38 (8th Dist.), citing State v. Kilbane, 8th Dist. Cuyahoga 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, * * * th

2018Clark No. 2014 CA 59, 2015-Ohio-1472 , ¶ 17, quoting Crawford at 60 . “[T]he core class of testimonial statements includes statements ‘that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.’ ” State v. Syx, 190 Ohio App.3d 845 , 2010-Ohio-5880 , 944 N.E.2d 722, ¶ 23 (2d Dist.), quoting Crawford at 52 . {¶ 55} In Williams v. Illinois, 567 U.S. 50 , 132 S.Ct. 2221 , 183 L.Ed.2d 89 (2012), -21- the United States Supreme Court found no Confrontation Clause violation under circumstances very simi

2018Clark No. 2014 CA 59, 2015-Ohio-1472 , ¶ 17, quoting Crawford at 60 . “[T]he core class of testimonial statements includes statements ‘that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.’ ” State v. Syx, 190 Ohio App.3d 845 , 2010-Ohio-5880 , 944 N.E.2d 722, ¶ 23 (2d Dist.), quoting Crawford at 52 . {¶ 55} In Williams v. Illinois, 567 U.S. 50 , 132 S.Ct. 2221 , 183 L.Ed.2d 89 (2012), -21- the United States Supreme Court found no Confrontation Clause violation under circumstances very simi

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- 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 witness is unavail

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.

2020However, 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, 2013-0hio-3712, ~ 18, 136 Ohio St. 3d 356,361 , 995 N.E.2d 1181, 1187 ; State v. Maxwell, 2014-0hio-1019, ~ 131, 139 Ohio St. 3d 12, 41 , 9 N.E.3d 930, 964 ("Crawford also stated 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. McKelton, 2016-0hio-5735, ¶217, 148 Ohio St. 3d 261, 300 , 70 N.E.3d 508, 562 . {¶63} Here,

2020However, 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, 2013-0hio-3712, ~ 18, 136 Ohio St. 3d 356,361 , 995 N.E.2d 1181, 1187 ; State v. Maxwell, 2014-0hio-1019, ~ 131, 139 Ohio St. 3d 12, 41 , 9 N.E.3d 930, 964 ("Crawford also stated 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. McKelton, 2016-0hio-5735, ¶217, 148 Ohio St. 3d 261, 300 , 70 N.E.3d 508, 562 . {¶63} Here,

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.