EvidenceProf blog reports on Commonwealth v. Patterson, 2011 WL 1520025 (Mass.App.Ct. 2011).
It is not very often that a defendant claims that a criminal prosecution violated both his Second Amendment and Sixth Amendment rights, but that was exactly the case in Commonwealth v. Patterson, 2011 WL 1520025 (Mass.App.Ct. 2011).
Here’s the confrontation point.
The defendant’s second argument on appeal was that the admission of the child’s statement, "He pushed Mommy into the wall. He had a gun," violated his right to confrontation under the Sixth Amendment." The court again disagreed, finding that
The child’s statement here was made spontaneously, without police questioning, as the officers walked into a volatile and unstable scene of domestic disturbance. There is nothing to suggest that the statement was made for any purpose other than to secure aid, let alone that the five year old child had in mind that the statement would or could be used to prove some fact at a future criminal trial. The statement, accordingly, was not testimonial for purposes of the Sixth Amendment.
And, because the statement was not testimonial, its admission could not violate the Confrontation Clause.
There are several hearsay exceptions that cover such a situation.