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Crawford and the Sixth Amendment

The Sixth Amendment gives defendants the right to confront any witness that is being used against them. A Crawford issue arises when there is a statement that is offered for its truth and is testimonial. If it is both of those, then the declarant of that statement has to testify, or the opposing party had to have a prior opportunity to cross-examine them about the statement and the declarant is unavailable. “Testimonial” has not been neatly and clearly defined, but the United States Supreme Court has given some guidance.


· Crawford v. Washington, 541 U.S. 36 (2004) “Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.”

· Davis v. Washington, 547 U.S. 813 (2006) “Without attempting to produce an exhaustive classification of all conceivable statements—or even all conceivable statements in response to police interrogation—as either testimonial or nontestimonial, it suffices to decide the present cases to hold as follows: Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.”

· State v. Perez, 423 S.C. 491 (2018) According to the S.C. Court of Appeals and the S.C. Supreme Court, the trial court did commit an error by not allowing defendant to cross-examine the witness about her U-visa application. The Supreme Court disagreed with the Court of Appeals and held that this was not a harmless error.

· State v. Anderson, 413 S.C. 212 (2015) There is not a Crawford violation when the defense has a meaningful opportunity to cross-examine a child witness.

· State v. Brockmeyer, 406 S.C. 324 (2013) Nontestimonial evidence is excluded from Confrontation Clause analysis. In determining whether or not the statement is testimonial, the court should look to the primary purpose of the statement and if it is being used as “an out-of-court- substitute for trial testimony. “In determining the primary purpose of the out-of-court statement, ‘the relevant inquiry is not the subjective or actual purpose of the individuals involved in a particular encounter, but rather the purpose that reasonable participants would have had, as ascertained from the individuals' statements and actions and the circumstances in which the encounter occurred.’”

· State v. Ladner, 373 S.C. 103 (2007) Ohio v. Roberts can still be used as the primary authority for nontestimonial hearsay.

· State v. Ladner, 373 S.C. 103 (2007) Crawford did not define what is testimonial, but it did give some guidance:

ex parte in-court testimony or its functional equivalent, such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially;

extrajudicial statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions;

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; and

statements taken by police officers in the course of interrogations.”

· State v. Davis, 317 S.C. 170 (2006) Statement made outside of an investigatory or judicial context is nontestimonial.


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