The Confrontation Clause & Hearsay Rule

In his play King Richard II, written in 1575, William Shakespeare had his fictional king set this procedure for trial: "Then call them into our presence - face to face, and frowning from brow to brow, ourselves will hear the accuser and the accused freely speak..." (Richard II, Act I, Scene I).


At the time Shakespeare was writing his plays over 400 years ago, outrageous abuses were the daily routine in criminal trials throughout England. Supreme Court Justice Clarence Thomas pointed out in the 1992 case of White v. Illinois, U.S., 112 S, Ct. 736, 50 Cr.L. 2031, that people in early England were being convicted in trials by "anonymous accusers and absentee witnesses." (112 S. Ct. at 746, 50 Cr.L. at 2037).


When Casey Anthony stands trial in May of 2011, her guilt or innocence will be determined to some extent by LIVE witnesses. When any of those witnesses want to testify about something someone else said, outside of the courtroom, the testimony is called hearsay. While it is true that all in-court testimony possesses risks regarding honesty and accuracy, hearsay is much riskier. As a matter of fact, the Sixth Amendment hearsay rule operates to exclude such evidence at trial. To comprehend the hearsay rule and its exceptions, we should better understand the reasons for the rule and its history.

Sir Walter Raleigh

"This is a sharp Medicine, but it is a Physician for all diseases and miseries."

Explorer and soldier Sir Walter Raleigh was a member of the English Court of Queen Elizabeth. Until her death in 1603, he enjoyed her patronage and protection and pretty much had his way. When she died, the new king, James I, didn't take much of a fancy in him and he was thrown into the Tower of London. Later that year, he was tried for treason against the king. His conviction was based on the confession of one conspirator, who did not appear as a witness in court. Most historians agree that the man was most likely tortured into confessing, because he denied it prior to Raleigh's trial. He was later released and rearrested, and in 1618, he was beheaded.

"Let us dispatch," he said to his executioner, who showed him the axe. "At this hour my ague comes upon me. I would not have my enemies think I quaked from fear."

His final words were said to have been, "Strike, man, strike!"

Following the death of Sir Walter Raleigh, English courts began developing hearsay rules and by 1690, evidence shows that they were in place to prevent abuses like the one that caused Raleigh's untimely death, which was nothing more than trumped up charges.

William Penn's Jury

Poor old William Penn. You probably know him more by the state named after him, New Jersey. Oh wait. It was Pennsylvania. Silly me, but speaking of New Jersey, are you aware that in the summer of 1783, the Continental Congress met in Nassau Hall at Princeton University, making Princeton the nation's capital for four months? Sorry, I had to get a plug in for my home state. Back to Penn...

One of the most important cases in the development of the authority and power of a jury occurred at a trial against him in London in 1670. It was their duty to determine the weight and credibility of testimony from witnesses. Penn was a peaceful man who had been charged with preaching to an unlawful assembly. The basis of the charge was that he addressed his group of followers in a church meeting. To the king, who was of a different faith, that was a no no, because citizen's were supposed to adhere to his religion. Or else.

The trial was a farce, filled with hearsay and innuendo. After the trial, the jury refused to convict him. The king ordered them to reconsider. They refused. He refused to accept their decision and ordered them held for two days without food, water, and other basic necessities. Of course, there were no flushing toilets in the day. When nothing broke them, they were finally released, but they were fined for holding to their not guilty verdict. Later, an appellate court sustained Penn and the jury in a writ of habeas corpus, ruling that juries were not to be punished for failing to deliver the verdict the court wanted.

After the trial of William Penn, the concept of an impartial jury continued developing, along with the hearsay rule. John Henry Wigmore (1863-1943) called the hearsay rule "the greatest contribution of the [English] legal system... next to the jury trial."

American Colonies and States

The idea of independent, impartial juries and hearsay rules were brought to the New World by English settlers as part of the common law system from Great Britain. After the Revolutionary War, the new country adopted the rules as part of the American legal system. Citizens had the right to an impartial jury and the Bill of Rights Confrontation Clause was set forth in the Sixth Amendment in 1791.

The Sixth Amendment

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

The U.S. Supreme Court noted that the rule against hearsay is closely related to the constitutional right of confrontation as they both"stem from the same roots" and that "... hearsay rules and the Confrontation Clause are generally designed to protect similar values..." Dutton v. Evans, 400 U.S. 74, 86, 91 S. Ct. 210, 218 (1970).

In the 1980 case of Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, the Supreme Court recognized that "historic evidence leaves little doubt... that the Clause was intended to exclude some hearsay..." But it doesn't forbid it.

Order in the Court!

Fans of Perry Mason reruns and Law & Order should be familiar with hearsay, but who can clearly define it?

Take the case of Mark D. Jensen, a Wisconsin man found guilty of murdering his wife, Julie, in 1998. About 3 weeks before her death, she told local police via voice mails, her son's teacher and a neighbor that she suspected her husband was planning on killing her. She took the extreme measure of giving her neighbor a sealed letter that detailed her suspicions, and told her neighbor to hand it over to the police if something happened to her.

After falling ill and taken to bed, on December 3, 1998, she died. The State alleged that her husband gave her ethylene glycol - antifreeze - and then possibly smothered her as the poison wore off. The defense ploy was rather simple; they argued Mark Jensen's wife was depressed because he was having an affair, so she committed suicide.

The case dragged on until 2002 and beyond, when Jensen was finally charged with his wife's murder. This was due to legal wrangling over evidence. In March 2004, the U.S. Supreme Court overturned a 1980 case that laid out complex rules for when statements could be used without the opportunity for cross-examination. After all, Julie was dead and she was not going to be cross-examined. Prosecutors wanted to use Julie's letters as a "voice from the grave" in an effort to prove her husband murdered her. First, the court had to rule if it was legal to allow such evidence.

In that 2004 decision, the U.S. Supreme Court said the case complicated a part of the Constitution that guarantees a criminal defendant the right to confront his accusers. In Crawford v. Washington, 541 U.S. 36 (2004), the standards for determining when hearsay statements were admissible in criminal cases were changed. The court ruled that defendants have added protections if the hearsay evidence is testimonial or accusatory. For those types of accusations, the decision toed the Sixth Amendment line, that the defendant had a right to confront his accuser. Thus, a Catch-22 problem arose. If Jensen killed his wife and she wasn't around to testify against him, what should be done?

Jensen's trial began in 2008, after many delays. The trial judge ruled that the letter and voice mails to police were inadmissible, but the neighbor's testimony would be allowed.

Prosecutors appealed the judge's decision, and the Wisconsin Supreme Court determined that Julie's letter could be used as evidence in the trial if prosecutors could demonstrate there was sufficient evidence that her husband had murdered her, therefore making it impossible for him to face her in court. The court also ruled that her statements to her neighbor and son's teacher were "non-testimonial" in nature, allowing them to also be admitted into evidence. Bingo! After the Wisconsin Supreme Court hearing, the trial judge decided it was reasonable to believe that Mark Jensen's actions prevented his wife from testifying. He was found guilty a month-and-a-half later and sentenced to life in prison without possibility of parole.

So What Is Hearsay?

Those who read my blog know that I attend Casey Anthony's court hearings when I can. I come back, sit down at my computer and tell you of my experiences. This is called first-hand knowledge. If you read my story and tell it to another person, that person is receiving what is commonly referred to as reliable hearsay. So, what else is hearsay?

Let's say you want to call me to ask me a question about the case, but you can't find my phone number. You Google it, and that's how you find me. It's hearsay.

Reporting the news every night, the anchor is relating reliable hearsay, while the journalist in the field is reporting first-hand. If the event is over and done with and it's reported after the fact, this would be reliable hearsay. In my state, the Florida Highway Patrol investigates all vehicle accidents. All police provide reliable hearsay unless they witnessed it. This includes criminal investigations. Law enforcement will be very busy come next May, when Casey's trial is slated to begin and they give reliable testimony in court.


A witness who is testifying as to first-hand knowledge is not testifying as to hearsay. However, as the questioning proceeds, it will undoubtedly get into areas where the opposition makes objections. This is because, as testimony evolves, the gray areas turn to black and white hearsay. The first-hand account crosses paths with hearsay. Remember this, because you will hear plenty of objections from both sides. This is where Judge Strickland will have to make the call.


According to Rule 801 of the Federal Rules of Evidence, "Hearsay is a statement, other than one made by the declarant (the witness) while testifying at a trial or hearing, offered in evidence to prove the truth of the matter asserted."

And What Isn't in Criminal Trials?

You call Snoopy and ask her for my number. She has called me in the past. She's spoken to me at that number. This is first-hand knowledge and is not hearsay.

According to those Federal Rules of Evidence, the following ARE NOT hearsay and do not fall under the rule of hearsay:

Statements by the defendant - The Miranda warning tells suspects that anything they say may be used against them in a courtroom. In the courtroom, they can also deny or correct inaccurate statements made if they choose to do so. 

Statements by a coconspirator made 'during' the crime or 'in furtherance' of the crime -  Filed under Rule 801(d)(2)(E), under Statements which are not Hearsay. In 1992, the U.S. Supreme Court ruled that statements made by coconspirators "provide evidence of a conspiracy's context that cannot be replicated, even if the [coconspirator] testifies to the same matters in court." 475 U.S. 387, 395, 106 S. Ct. 1121, 1126. 

Prior statements by witnesses - Under federal law, if the witness has previously testified as to the matter at a previous trial, preliminary hearing, or any other type of hearing and was subject to cross-examination, those statements ARE NOT hearsay. This could explain, in my opinion, why John Morgan wants to get his claws into Casey before her criminal trial. Dig up as much evidence against her as he can at the civil trial. Prove her guilty there and get the glory. It's almost a sure thing that if the civil case is not postponed, Casey will have to settle and poor John will be shot down.

What we have learned is that hearsay is allowed in court, depending on how reliable it is. That's how I'll leave it, with a couple of final thoughts thrown in. I could write more about things like Dying Declarations¹, which most likely isn't the case for Roy Kronk's ex-wife, Jill Kerley, and the Outcry Rule, but I think this is already plenty to handle for now. What I will say in closing is that there is such a thing as the defense claiming that someone else committed the crime. Usually, when the state has a strong case against the defendant, like it seems to have against Casey, any evidence of an accused is admissible if it can be shown that "corroborating circumstances clearly indicate the trustworthiness of the [defense]." Federal Rule 804(3). Something to ponder? You be the judge, but Casey's attorney, Jose Baez, said in a January 25 interview with Jane Velez-Mitchell that, “She wasn’t treated like anyone else since the moment she was arrested. And that’s all we were asking for.”


If you recall, Judge Strickland, in July 2008, set Casey's bond at $500,000, he ordered home confinement with electronic monitoring, a complete psychological evaluation within 30 days, and ruled that she must turn over her passport if bond was posted.

"Not a bit of useful information has been provided by Ms. Anthony as to the whereabouts of her daughter," the judge said back then."And I would add that the truth and Ms. Anthony are strangers." And that's not hearsay.

See also: Hearsay Exemptions if Witness is Able to Testify

¹Dying Declarations - Federal Rule 804(2) - Statements made under impending death by a declarant while believing that their death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death. The Florida Supreme Court held in the 1991 case of Henry v. State, 576 So.2d 1033, that: It is not required that the declarant make "express utterances... that he knew he was going to die, or could not live, or would never recover." Lester v. State, 37 Fla. 382, 385, 20 So. 232, 233 (1896). Rather, the court should satisfy itself, on the totality of the circumstances, "that the deceased knew and appreciated his condition as being that of an approach to certain and immediate death." Id., 20 So. at 233. See also: Lyons v. United States, 606 A.2d 1354 (D.C.App. 1992), and State v, Griffin, 540 So.2d. 1144 (La.App. 1989).

Reference: Criminal Evidence|Principals and Cases, Gardner, Thomas J. and Anderson, Terry. West.