The Hearsay Rule, the Confrontation Clause, and Reversible Error in Criminal Cases
Robert D. Bartels
Arizona State University (ASU) - Sandra Day O'Connor College of Law
Arizona State Law Journal, Vol. 26, p. 967, 1994
In paradigmatic terms, the problem with which this article is concerned is as follows: the prosecution in a criminal trial offers evidence of a hearsay statement by a non-testifying declarant that does not fit within any exception to the hearsay rule; defense counsel objects solely on hearsay grounds; the trial court erroneously admits the evidence; and the defendant is convicted. By its terms, this situation plainly involves trial-court error that the defendant may present on appeal. But what standard should govern whether the error is reversible?
This article illustrates the practical significance of this question using a hypothetical criminal case in which a hearsay statement as described above is admitted in court. Defense counsel objects to this testimony on hearsay grounds, but does not mention the Confrontation Clause. The trial court overrules the objection, and the defendant is convicted. On appeal, the defendant argues that the admission of the testimony in question violated both the hearsay rule and the Confrontation Clause. This argument raises a number of questions on appeal: (1) was there a violation of the hearsay rule; (2) should the court consider the Confrontation Clause argument; (3) was there a Confrontation Clause violation; and (4) what is the proper standard for determining whether any error is reversible?
This article addresses these questions and suggests that until it becomes clear that the courts will agree with the proposed answer to the fourth question, competent defense counsel should never object on hearsay grounds without also objecting on Confrontation Clause grounds.
Number of Pages in PDF File: 20
Keywords: evidence, hearsay, Confrontation ClauseAccepted Paper Series
Date posted: June 25, 2009
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