INTRODUCTORY NOTE

(a) Confrontation Clause and Hearsay in Criminal Cases. In considering the following sections, it is necessary to recognize the distinction between hearsay rules and the requirements of the confrontation clause of the Sixth Amendment to the Constitution of the United States and Article 12 of the Declaration of Rights. In Crawford v. Washington, 541 U.S. 36, 54 (2004), the United States Supreme Court explained that the Sixth Amendment expressed the common-law right of the defendant in a criminal case to confrontation, and that it was subject only to those exceptions that existed at the time of the amendment’s framing in 1791. As a result, the Supreme Court held that “testimonial statements” of a witness who is not present at trial and subject to cross-examination are not admissible unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. Id. at 53–54. Therefore, regardless of whether an out-of-court statement that is testimonial in nature satisfies the criteria for admissibility as an exception to the hearsay rule, it will not satisfy the requirements of the Sixth Amendment if the witness is not present at trial, unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. Id. Accord Commonwealth v. Gonsalves, 445 Mass. 1, 14, 833 N.E.2d 549, 559 (2005), cert. denied, 548 U.S. 926 (2006) (“constitutional provision of the confrontation clause trumps [our own] rules of evidence”).

In subsequent cases, the United States Supreme Court and the Supreme Judicial Court have provided additional guidance for determining whether out-of-court statements are testimonial. See Davis v. Washington, 547 U.S. 813 (2006). See, e.g., Commonwealth v. Nardi, 452 Mass. 379, 387–395 (2008) (concluding that the opinions and conclusions of a medical examiner who performed an autopsy and wrote a report which formed the basis of the opinion of a second medical examiner who testified at trial were testimonial statements); Commonwealth v. Nesbitt, 452 Mass. 236, 242–252, 892 N.E.2d 299, 305–312 (2008) (statements made to 911 operator by victim of multiple stab wounds were primarily directed to obtaining help and thus were nontestimonial; additional statements made shortly thereafter by victim to her neighbor were nontestimonial); Commonwealth v. Burton, 450 Mass. 55, 63–64, 876 N.E.2d 411, 418 (2007) (coconspirator statements); Commonwealth v. Galicia, 447 Mass. 737, 739, 857 N.E.2d 463, 466 (2006) (statements made to 911 dispatcher were nontestimonial and therefore admissible, but statements made to responding officers were testimonial and therefore inadmissible, but not reversible error), adopting Davis v. Washington, 547 U.S. 813 (2006); Commonwealth v. DeOliveira, 447 Mass. 56, 63–67, 849 N.E.2d 218, 224–227 (2006) (child abuse victim statements); Commonwealth v. Gonsalves, 445 Mass. at 17–18, 833 N.E.2d at 561–562 (statements made to mother); Commonwealth v. Verde, 444 Mass. 279, 282–285, 827 N.E.2d 701, 704–706 (2005) (drug certificates of analysis). But see Commonwealth v. Melendez-Diaz, 69 Mass. App. Ct. 1114, 870 N.E.2d 676 (2007), cert. granted, 128 S. Ct. 1647 (2008) (certiorari granted on the issue of the admissibility of a certificate of drug analysis). See also Commonwealth v. Tang, 66 Mass. App. Ct. 53, 57–61, 845 N.E.2d 407, 411–414 (2006) (child witness statement to responding police officers); Commonwealth v. Crapps, 64 Mass. App. Ct. 915, 915–916, 835 N.E.2d 275, 276 (2005) (record of prior conviction); Commonwealth v. Lampron, 65 Mass. App. Ct. 340, 344–346, 839 N.E.2d 870, 874–875 (2005) (medical records). See generally David A. Lowy & Katherine Bowles Dudich, After Crawford: Using the Confrontation Clause in Massachusetts Courts, 12 Suffolk J. Trial & App. Advoc. 1 (2007).

(b) Confrontation Clause Inapplicable. Under certain conditions, the confrontation clause of the Federal and State Constitutions does not bar the admission of testimonial statements, introduced for purposes other than establishing the truth of the matter asserted, in criminal cases even though the declarant is not available for cross-examination. Commonwealth v. Pelletier, 71 Mass. App. Ct. 67, 69–72, 879 N.E.2d 125, 128–130 (2008), citing Crawford v. Washington, 541 U.S. 36, 59–60 n.9 (2004). See Commonwealth v. Pelletier, 71 Mass. App. Ct. at 69–72, 879 N.E.2d at 128–130 (wife’s statement was properly admitted for a limited purpose other than its truth even though she did not testify at the defendant’s trial).

(c) Scope of Right of Confrontation. Based on differences in the language of the Sixth Amendment (defendant’s right to be “confronted with the witnesses against him”) and Article 12 of the Declaration of Rights (defendant’s right to “meet the witnesses against him face to face”), the State Constitution has been interpreted by the Supreme Judicial Court to provide a criminal defendant more protection than the Sixth Amendment in certain respects. Compare Maryland v. Craig, 497 U.S. 836, 844–850 (1990) (confrontation clause does not guarantee criminal defendants an absolute right to a face-to-face meeting with the witnesses against them at trial; upholding constitutionality of a procedure whereby a young child alleged to have been the victim of a sexual assault testified at trial outside the courtroom but was visible to defendant and jury on a monitor), with Commonwealth v. Amirault, 424 Mass. 618, 631–632, 677 N.E.2d 652, 662 (1997) (Article 12 requires that the jury be allowed to assess the encounter between the witness and the accused with the witness testifying in the face of the accused; in certain circumstances, however, the encounter between the defendant and the child witness may take place outside the courtroom and be presented at trial by videotape; see G. L. c. 278, § 16D). See also Commonwealth v. Bergstrom, 402 Mass. 534, 541–542, 524 N.E.2d 366, 371–372 (1988). However, when the question involves the relationship between the hearsay rule and its exceptions, on the one hand, and the right to confrontation, on the other hand, “the protection provided by art. 12 is coextensive with the guarantees of the Sixth Amendment to the United States Constitution.” Commonwealth v. DeOliveira, 447 Mass. 56, 57 n.1, 849 N.E.2d 218, 221 n.1 (2006), citing Commonwealth v. Whelton, 428 Mass. 24, 28, 696 N.E.2d 540, 545 (1998), and Commonwealth v. Childs, 413 Mass. 252, 260, 596 N.E.2d 351, 356 (1992).

(d) Waiver of Right to Confrontation. The right to confrontation may be waived. See Commonwealth v. Chubbuck, 384 Mass. 746, 751, 429 N.E.2d 1002, 1005 (1981) (defendant waived right to be present at trial based on persistent disruptive behavior in the courtroom); Commonwealth v. Flemmi, 360 Mass. 693, 694, 277 N.E.2d 523, 524 (1971) (if defendant is voluntarily absent after trial begins, “the court may proceed without the defendant”). See also Mass. R. Crim. P. 18(a)(1) (“If a defendant is present at the beginning of a trial and thereafter absents himself without cause or without leave of court, the trial may proceed to a conclusion in all respects except the imposition of sentence as though the defendant were still present.”). A defendant must be competent to plead guilty in order to waive his or her presence at trial. Commonwealth v. L’Abbe, 421 Mass. 262, 268–269, 656 N.E.2d 1242, 1245–1246 (1995). The doctrine of forfeiture by wrongdoing (see Section 804(b)(6), Hearsay Exceptions; Declarant Unavailable: Hearsay Exceptions: Forfeiture by Wrongdoing) is another example of a waiver of the right to confrontation. See Commonwealth v. Edwards, 444 Mass. 526, 830 N.E.2d 158 (2005). There may be some statements that are so lacking in reliability that even though the defendant may have waived his or her right to confrontation, their admission would raise due process concerns. See id. at 540 n.21, 830 N.E.2d at 170 n.21.