On the confrontation front

Article 10, UCMJ, may be dead. But there is still activity on the Sixth Amendment confrontation front.

Here’s an interesting case dredged up by federal evidence review blog about a 40 year old affidavit and its treatment under the Sixth.

Fifth Circuit reverses conviction after the government failed to meet its burden to show that an affidavit was non-testimonial under theConfrontation Clause under the Supreme Court’s “primary purpose” test; circuit also rejects proposed accusatory test as lacking support in precedent or in the text of the Sixth Amendment, in United States v. Duron-Caldera, _ F.3d _ (5th Cir. Dec. 16, 2013) (No. 12-50738) When a statement is introduced from a non-testifying witness, the Supreme Court applies a primary purpose test under the Sixth Amendment to determine whether the statement is testimonial. See Davis v. Washington, 547 U.S. 813, 822 (2006) (adopting “primary purpose” test to determine testimonial nature of statements). The Fifth Circuit recently considered whether a forty-year old affidavit was admissible under the Confrontation Clause. Because the affidavit was testimonial, the circuit reversed the conviction and remanded the case for a new trial.

And here is a note by Professor Friedman at confrontation blog about some pending cases in the Supremes which he feels may help to unravel

It may well be that the Court realizes that it needs to do something in light of the confusion created by the fractured decision in Williams [v. Illinois, 132 S. Ct. 2221, 183 L. Ed. 2d 89 (2012)], but it has not yet decided which case to take.