Under the Confrontation Clause, what condition makes testimonial statements subject to cross-examination requirements?

Under the Confrontation Clause, what condition makes testimonial statements subject to cross-examination requirements?

• A. Testimonial statements require no cross-examination of the declarant.
• B. The declarant must be present at trial for cross-examination.
• C. Testimonial statements require unavailability or prior cross-examination of the declarant.
• D. Non-testimonial statements require the same cross-examination.

Answer: (C)

The crucial idea is that the Confrontation Clause protects the defendant by ensuring cross-examination for testimonial statements. A testimonial statement can be admitted only if the declarant is available for cross-examination—either by appearing in court to be cross-examined, or, if the declarant is unavailable, only if there was a prior opportunity to cross-examine about that statement. In other words, the statement is subject to cross-examination requirements when the declarant is unavailable and there has been a prior opportunity for cross-examination (or the declarant testifies in court). Non-testimonial statements aren’t governed by the same requirement.

The crucial idea is that the Confrontation Clause protects the defendant by ensuring cross-examination for testimonial statements. A testimonial statement can be admitted only if the declarant is available for cross-examination—either by appearing in court to be cross-examined, or, if the declarant is unavailable, only if there was a prior opportunity to cross-examine about that statement. In other words, the statement is subject to cross-examination requirements when the declarant is unavailable and there has been a prior opportunity for cross-examination (or the declarant testifies in court). Non-testimonial statements aren’t governed by the same requirement.