confrontation clause in Alaska

2003See also Brandon v. State, 839 P.2d 400, 411-12 (Alaska App.1992) (affirming trial court's ruling allowing prior inconsistent statements of three-year old witness who testified at trial but who could not remember details of an assault and holding there was no Confrontation Clause violation because child was available for cross-examination). 31 .

1994See also Brandon v. State, 839 P.2d 400 , 409 & n. 6 (Alaska App.1992); Renkel v. State, 807 P.2d 1087 , 1094 & n. 7 (Alaska App.1991).

1983For example, in United States v. Snow, 521 F.2d 730, 734-35 (9th Cir.1975), cert. denied, 423 U.S. 1090 , 96 S.Ct. 883 , 47 L.Ed.2d 101 (1976), the court dealt with the analogous issue of whether the confrontation clause was violated by admission against the defendant, under the co-conspirator exception to the hearsay rule, of prior statements made by an accomplice.

1983For example, in United States v. Snow, 521 F.2d 730, 734-35 (9th Cir.1975), ce rt. denied, 423 U.S. 1090 , 96 S.Ct. 883 , 47 L.Ed.2d 101 (1976), the court dealt with the analogous issue of whether the confrontation clause was violated by admission against the defendant, under the co-conspirator exception to the hearsay rule, of prior statements made by an accomplice.

2022In Crawford v. Washington, the United States Supreme Court held that the confrontation clause of the Sixth Amendment bars the admission of “testimonial” hearsay statements against a criminal defendant unless (1) the hearsay declarant is available to be cross-examined, or (2) the government establishes that the hearsay declarant is unavailable, and the defendant had a prior opportunity to cross-examine the declarant.6 The Court held that statements made by a witness during prior testimony under oath, or during a formal police interrogation, are testimonial, but the Court otherwise refrained fro

2022In Crawford v. Washington, the United States Supreme Court held that the confrontation clause of the Sixth Amendment bars the admission of “testimonial” hearsay statements against a criminal defendant unless (1) the hearsay declarant is available to be cross-examined, or (2) the government establishes that the hearsay declarant is unavailable, and the defendant had a prior opportunity to cross-examine the declarant.6 The Court held that statements made by a witness during prior testimony under oath, or during a formal police interrogation, are testimonial, but the Court otherwise refrained fro

2006But in Davis v. Washington, the Supreme Court stated that the result reached in Dutton v. Evans-a case dealing with hearsay statements against penal interest-is likewise consonant with Crawford's interpretation of the confrontation clause. 15 In Dutton v. Evans, 400 U.S. 74 , 91 S.Ct. 210 , 27 LEd.2d 213 (1970), the Supreme Court upheld the admission of a statement made by one prisoner to another; this statement implicated both the declarant and the defendant in a murder.

2006But in Davis v. Washington, the Supreme Court stated that the result reached in Dutton v. Evans-a case dealing with hearsay statements against penal interest-is likewise consonant with Crawford's interpretation of the confrontation clause. 15 In Dutton v. Evans, 400 U.S. 74 , 91 S.Ct. 210 , 27 LEd.2d 213 (1970), the Supreme Court upheld the admission of a statement made by one prisoner to another; this statement implicated both the declarant and the defendant in a murder.

1986As noted in California v. Green, 399 U.S. at 155-56 , 90 S.Ct. 1933 -34, 26 L.Ed.2d at 495-96 , in some situations, evidence may violate the hearsay rule without violating the confrontation clause.

1986As noted in California v. Green, 399 U.S. at 155-56 , 90 S.Ct. 1933 -34, 26 L.Ed.2d at 495-96 , in some situations, evidence may violate the hearsay rule without violating the confrontation clause.

2005For these reasons, I agree with my colleagues that the Confrontation Clause did not bar the State from introducing hearsay testimony that the victim in this case answered the officer's question by stating, "Joe hit me with a pipe." NOTES [1] See Anderson v. State, Alaska App. Memorandum Opinion and Judgment at 5-8 No. 4823 (January 28, 2004). [2] 448 U.S. 56 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980). [3] 448 U.S. at 66 , 100 S.Ct. at 2539. [4] Wash. Rule Evid. 804(b)(3); A.R.E. 804(b)(3). [5] Crawford, 541 U.S. at 40 , 124 S.Ct. at 1358 . [6] Roberts, 448 U.S. at 66 , 100 S.Ct. 2531 . [7] Crawf

2005For these reasons, I agree with my colleagues that the Confrontation Clause did not bar the State from introducing hearsay testimony that the victim in this case answered the officer's question by stating, "Joe hit me with a pipe." NOTES [1] See Anderson v. State, Alaska App. Memorandum Opinion and Judgment at 5-8 No. 4823 (January 28, 2004). [2] 448 U.S. 56 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980). [3] 448 U.S. at 66 , 100 S.Ct. at 2539. [4] Wash. Rule Evid. 804(b)(3); A.R.E. 804(b)(3). [5] Crawford, 541 U.S. at 40 , 124 S.Ct. at 1358 . [6] Roberts, 448 U.S. at 66 , 100 S.Ct. 2531 . [7] Crawf

1993Unless the defendant consents to communicate with his or her sentencing judge by telephone, the judge must be physically present with the defendant when the defendant exercises his or her right of allocution and when the judge initially pronounces the defendant’s sentence. 6 The United States Supreme Court has indicated that a defendant’s right to be present “at every stage” of criminal proceedings is rooted both in the confrontation clause of the Sixth Amendment, Illinois v. Allen, 397 U.S. 337, 338 , 90 S.Ct. 1057, 1058 , 25 L.Ed.2d 353 (1970), and in the due process guarantees of the Fifth

1993Unless the defendant consents to communicate with his or her sentencing judge by telephone, the judge must be physically present with the defendant when the defendant exercises his or her right of allocution and when the judge initially pronounces the defendant’s sentence. 6 The United States Supreme Court has indicated that a defendant’s right to be present “at every stage” of criminal proceedings is rooted both in the confrontation clause of the Sixth Amendment, Illinois v. Allen, 397 U.S. 337, 338 , 90 S.Ct. 1057, 1058 , 25 L.Ed.2d 353 (1970), and in the due process guarantees of the Fifth

1994He reasons that, under Hawley v. State, 614 P.2d 1349, 1368 (Alaska 1980), even a statement admissible under a firmly rooted exception will violate the confrontation clause unless the court independently finds that the statement is “sufficiently reliable” to justify its admission.

1992In Hawley v. State, 614 P.2d 1349, 1358-59 (Alaska 1980), the Alaska Supreme Court held that co-conspirator statements must be accompanied by “indicia of reliability" to satisfy the confrontation clause of the Sixth Amendment.

1979In Sidney v. State, 468 P.2d 960, 963 (Alaska 1970), we refused to apply the rule to the confession of a codefendant who testified at trial, reasoning that the opportunity for cross-examination nullified any claimed lack of a right to confrontation. [19] Similarly, in P.H. v. State, 504 P.2d *723 837, 843 (Alaska 1972), we held that the testimony of a kidnapping victim as to what the codefendants had said was admissible under the circumstances of the case under a recognized exception to the hearsay rule. [20] Most recently, in Benefield v. State, 559 P.2d 91, 95 (Alaska 1977), we held that pol

1979In Sidney v. State, 468 P.2d 960, 963 (Alaska 1970), we refused to apply the rule to the confession of a codefendant who testified at trial, reasoning that the opportunity for cross-examination nullified any claimed lack of a right to confrontation. 19 Similarly, in P.H. v. State, 504 P.2d 837, 843 (Alaska 1972), we held that the testimony of a kidnapping victim as to what the codefendants had said was admissible under the circumstances of the case under a recognized exception to the hearsay rule. 20 Most recently, in Benefield v. State, 559 P.2d 91, 95 (Alaska 1977), we held that police offic

2019These affidavits declared that the laboratory had tested the substance, and that the substance was cocaine. 5 The Supreme Court held that these affidavits were “testimonial hearsay”, that the introduction of these affidavits against the defendant violated the confrontation clause, and that the government was required to produce a live witness to testify about the results of the laboratory testing. 6 At the same time, however, the Court declared that the confrontation clause did not require live testimony from everyone involved in the testing process: 2 557 U.S. 305 , 129 S.Ct. 2527 , 174 L.Ed.

2019These affidavits declared that the laboratory had tested the substance, and that the substance was cocaine. 5 The Supreme Court held that these affidavits were “testimonial hearsay”, that the introduction of these affidavits against the defendant violated the confrontation clause, and that the government was required to produce a live witness to testify about the results of the laboratory testing. 6 At the same time, however, the Court declared that the confrontation clause did not require live testimony from everyone involved in the testing process: 2 557 U.S. 305 , 129 S.Ct. 2527 , 174 L.Ed.

2019These affidavits declared that the laboratory had tested the substance, and that the substance was cocaine. 5 The Supreme Court held that these affidavits were “testimonial hearsay”, that the introduction of these affidavits against the defendant violated the confrontation clause, and that the government was required to produce a live witness to testify about the results of the laboratory testing. 6 At the same time, however, the Court declared that the confrontation clause did not require live testimony from everyone involved in the testing process: 2 557 U.S. 305 , 129 S.Ct. 2527 , 174 L.Ed.

2017In Vann v. State, 229 P.3d 197 (Alaska App.2010) (a case decided a little over a year after Adams’s trial), this Court addressed the question of how a defendant’s rights under the confrontation clause might limit the government’s ability to pi’esent expert testimony when the expert’s opinion is based on observations and/or testing performed by other people who do not testify.

2019VI (" In all criminal prosecutions , the accused shall enjoy the right ... to be confronted with the witnesses against him." (emphasis added)); Davis v. Alaska , 415 U.S. 308 , 315, 94 S.Ct. 1105 , 39 L.Ed.2d 347 (1974) (stating that the rights conferred by the confrontation clause is secured for defendants in state proceedings under Pointer v. Texas , 380 U.S. 400 , 85 S.Ct. 1065 , 13 L.Ed.2d 923 (1965) ).

2019VI (" In all criminal prosecutions , the accused shall enjoy the right ... to be confronted with the witnesses against him." (emphasis added)); Davis v. Alaska , 415 U.S. 308 , 315, 94 S.Ct. 1105 , 39 L.Ed.2d 347 (1974) (stating that the rights conferred by the confrontation clause is secured for defendants in state proceedings under Pointer v. Texas , 380 U.S. 400 , 85 S.Ct. 1065 , 13 L.Ed.2d 923 (1965) ).

2010Compare United States v. Owens, 484 U.S. 554, 559 , 108 S.Ct. 838, 842 , 98 L.Ed.2d 951 (1988) (holding that the confrontation clause was not violated by the admission of an out-of-court identification made by the victim of an assault who, when called as a witness at trial, was unable to remember the occurrence due to brain injury); and Van Hatten v. State, 666 P.2d 1047, 1051-52 (Alaska App.1983) (upholding the admission of a witness's prior statement as a "prior inconsistent statement" after the witness-the defendant's stepdaughter-took the stand and falsely asserted that she had no memory o

2010Compare United States v. Owens, 484 U.S. 554, 559 , 108 S.Ct. 838, 842 , 98 L.Ed.2d 951 (1988) (holding that the confrontation clause was not violated by the admission of an out-of-court identification made by the victim of an assault who, when called as a witness at trial, was unable to remember the occurrence due to brain injury); and Van Hatten v. State, 666 P.2d 1047, 1051-52 (Alaska App.1983) (upholding the admission of a witness's prior statement as a "prior inconsistent statement" after the witness-the defendant's stepdaughter-took the stand and falsely asserted that she had no memory o

1973It includes both the opportunity to cross-examine and the occasion for the jury to weigh the demeanor of the witness.” In Mattox v. United States, 156 U.S. 237, 242 , 15 S.Ct. 337, 339 , 39 L.Ed. 409, 411 (1895), the Court noted that the primary purpose of the confrontation clause was to prevent depositions or ex parte affidavits ... in lieu of a personal examination and cross-examination of the witness, in which the accused has an oppor-portunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order

1973It includes both the opportunity to cross-examine and the occasion for the jury to weigh the demeanor of the witness.” In Mattox v. United States, 156 U.S. 237, 242 , 15 S.Ct. 337, 339 , 39 L.Ed. 409, 411 (1895), the Court noted that the primary purpose of the confrontation clause was to prevent depositions or ex parte affidavits ... in lieu of a personal examination and cross-examination of the witness, in which the accused has an oppor-portunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order

2022LaFave, Criminal Procedure § 24.4(a), at 513-14 (4th ed. 2015) (noting that the Supreme Court has interpreted the confrontation clause of the Sixth Amendment to bar only the admission of testimonial hearsay and explaining that “[w]here nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law” (quoting Crawford v. Washington, 541 U.S. 36, 68 (2004))). 26 See Berezyuk v. State, 282 P.3d 386, 401 (Alaska App. 2012). – 14 – 2731 Why we conclude that C.H.’s statements to Officer Mills were testimonial G

2022Cf. Bentley v. State, 706 P.2d 1193 , 1197 n.2 (Alaska App. 1985) (noting that the burden of proving the declarant’s unavailability was “on the prosecution as the proponent of the recorded evidence”). 35 See, e.g., Commonwealth v. Rand, 170 N.E.3d 324 , 337-38 (Mass. 2021) (holding that statements made by victim to police officer on scene were testimonial because, even though suspect was still at large, ongoing emergency had dissipated and victim was in company of police officer); Legree v. State, 812 S.E.2d 68, 71 (Ga. App. 2018) (concluding that a victim’s statements to police officer after

2022More specifically, we hold that, taken as a whole, the circumstances of the conversation between Mills and C.H. indicate that its primary purpose was to establish past events, not to respond to an ongoing emergency.35 34 See United States v. Duron-Caldera, 737 F.3d 988, 993 (5th Cir. 2013) (“Significantly, the government bears the burden of defeating a properly raised Confrontation Clause objection by establishing that its evidence is nontestimonial.” (internal quotations and alteration omitted)); State v. Alers, 123 A.3d 825, 830 (Vt. 2005) (“The State, as the party seeking to introduce the o

2022Cf. Bentley v. State, 706 P.2d 1193 , 1197 n.2 (Alaska App. 1985) (noting that the burden of proving the declarant’s unavailability was “on the prosecution as the proponent of the recorded evidence”). 35 See, e.g., Commonwealth v. Rand, 170 N.E.3d 324 , 337-38 (Mass. 2021) (holding that statements made by victim to police officer on scene were testimonial because, even though suspect was still at large, ongoing emergency had dissipated and victim was in company of police officer); Legree v. State, 812 S.E.2d 68, 71 (Ga. App. 2018) (concluding that a victim’s statements to police officer after

2022More specifically, we hold that, taken as a whole, the circumstances of the conversation between Mills and C.H. indicate that its primary purpose was to establish past events, not to respond to an ongoing emergency.35 34 See United States v. Duron-Caldera, 737 F.3d 988, 993 (5th Cir. 2013) (“Significantly, the government bears the burden of defeating a properly raised Confrontation Clause objection by establishing that its evidence is nontestimonial.” (internal quotations and alteration omitted)); State v. Alers, 123 A.3d 825, 830 (Vt. 2005) (“The State, as the party seeking to introduce the o

2022Cf. Bentley v. State, 706 P.2d 1193 , 1197 n.2 (Alaska App. 1985) (noting that the burden of proving the declarant’s unavailability was “on the prosecution as the proponent of the recorded evidence”). 35 See, e.g., Commonwealth v. Rand, 170 N.E.3d 324 , 337-38 (Mass. 2021) (holding that statements made by victim to police officer on scene were testimonial because, even though suspect was still at large, ongoing emergency had dissipated and victim was in company of police officer); Legree v. State, 812 S.E.2d 68, 71 (Ga. App. 2018) (concluding that a victim’s statements to police officer after

2022Cf. Bentley v. State, 706 P.2d 1193 , 1197 n.2 (Alaska App. 1985) (noting that the burden of proving the declarant’s unavailability was “on the prosecution as the proponent of the recorded evidence”). 35 See, e.g., Commonwealth v. Rand, 170 N.E.3d 324 , 337-38 (Mass. 2021) (holding that statements made by victim to police officer on scene were testimonial because, even though suspect was still at large, ongoing emergency had dissipated and victim was in company of police officer); Legree v. State, 812 S.E.2d 68, 71 (Ga. App. 2018) (concluding that a victim’s statements to police officer after

2022Evid. 804. 38 Vaska v. State, 135 P.3d 1011 , 1021 (Alaska 2006). – 20 – 2719 expressly informs the witness that he or she may decline to respond to specific questions.[39] We concluded that we did “not need to decide whether this same reasoning has any force under Alaska law” because the prosecutor had unsuccessfully attempted to elicit testimony from the child witness regarding the allegations of Dushkin’s sexual abuse.40 Lee’s case presents similar circumstances.

2022Evid. 804. 38 Vaska v. State, 135 P.3d 1011, 1021 (Alaska 2006). – 20 – 2719 expressly informs the witness that he or she may decline to respond to specific questions.[39] We concluded that we did “not need to decide whether this same reasoning has any force under Alaska law” because the prosecutor had unsuccessfully attempted to elicit testimony from the child witness regarding the allegations of Dushkin’s sexual abuse.40 Lee’s case presents similar circumstances.

2022More specifically, we hold that, taken as a whole, the circumstances of the conversation between Mills and C.H. indicate that its primary purpose was to establish past events, not to respond to an ongoing emergency.35 34 See United States v. Duron-Caldera, 737 F.3d 988, 993 (5th Cir. 2013) (“Significantly, the government bears the burden of defeating a properly raised Confrontation Clause objection by establishing that its evidence is nontestimonial.” (internal quotations and alteration omitted)); State v. Alers, 123 A.3d 825, 830 (Vt. 2005) (“The State, as the party seeking to introduce the o

2022More specifically, we hold that, taken as a whole, the circumstances of the conversation between Mills and C.H. indicate that its primary purpose was to establish past events, not to respond to an ongoing emergency.35 34 See United States v. Duron-Caldera, 737 F.3d 988, 993 (5th Cir. 2013) (“Significantly, the government bears the burden of defeating a properly raised Confrontation Clause objection by establishing that its evidence is nontestimonial.” (internal quotations and alteration omitted)); State v. Alers, 123 A.3d 825, 830 (Vt. 2005) (“The State, as the party seeking to introduce the o