Court-Martial Trial Practice Blog
We’ve spent a lot of time over the last months addressing Crawford issues in the context of forensic reports. Let’s not forget that there are some exceptions to Crawford and confrontation.
Professor Colin Miller writes about the co-conspirator “exception” to Crawford.
In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court held that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant’s trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. Thus, if a statement is not testimonial, there is no problem with its admission under the Confrontation Clause. Thus, in its recent opinion in United States v. Diaz, 2010 WL 1767248 (11th Cir. 2010), the Eleventh Circuit was able to find a statement admissible without regard for the Confrontation Clause because co-conspirator admissions are non testimonial, even if they are made to confidential informants.