Virginia Criminal Law Case Outline: Sixth Amendment Cases

 The following is an outline of Sixth Amendment case law, with an emphasis on Virginia.  The outline is copied from the Sixth Amendment section of an outline maintained by Richard Collins, an attorney at Collins & Hyman, PLC.  Because Mr. Collins created the outline for his own reference, rather than for publication, the outline contains many abbreviations.  Questions regarding the abbreviations, or case cites, can be sent to





U.S. v. Jordan (4th Circuit, December 4, 2007)- D argued that co-conspirator’s statements made to witness were inadmissible under Crawford.  Since there was no evidence that the declarant knew that her statements would be used at trial, they were not testimonial and didn’t implicate the Sixth Amendment.  The Court also said, “to our knowledge, no court has ever extended Crawford to statements made by a declarant to friends or associates.”


Abney (COA, published March 4, 2008)- witness testified at 24 year-old murder trial and a portion of an affidavit from 1978 was introduced.  There was no Crawford violation because when a witness testifies at trial, “the Confrontation Clause places no restraints at all on the use of his prior testimonial statements.”


Gilman (VSC, February 29, 2008)- on an appeal to circuit court of a JDR summary contempt conviction, the trial court’s admission of the certificate of the JDR court summarizing the facts giving rise to the contempt conviction did not violate the Sixth Amendment.  Since the maximum punishment for this offense was 10 days, it is considered petty contempt, and therefore the Sixth Amendment does not apply to this offense, because they are not criminal prosecutions for constitutional purposes.  There is no confrontation clause problem because the Code does not provide for a trial de novo in circuit court.


Satterwhite, COA, published July 27, 2010- dying declaration case.  V identified D as the shooter.  This was done while V’s girlfriend was on the phone with 911 and the operator heard the statement.  V made same statement to paramedics.  COA held that Crawford did not change the rule that dying declaration are admissible in criminal cases.


Crawford, VSC, published January 13, 2011.  Affidavit in support of deceased V’s protective order inadmissible as testimonial hearsay.  Court mentioned “forfeiture by wrongdoing” doctrine regarding admissibility but agreed with COA that trial court did not hear sufficient facts to find that this case fit within that doctrine.


Robertson, COA, published September 11, 2012.  D charged with felony concealment.  Value established by two documents: handwritten list made by employee who did not testify at trial and voided receipt generated by that employee using her handwritten list.  COA held that these documents were testimonial and should not have been admitted.

REVERSED IN EN BANC OPINION, March 19, 2013.  The court noted that “the record reflects that while Dishman was the person who actually recorded the items and noted the prices reported by the cash register scan, Holcomb was present and directed, supervised, and observed the creation of the list of stolen items, and Holcomb created the adding machine tape.”  Therefore, unlike the challenged testimony in Bullcoming, Holcomb testified to her firsthand knowledge of the creation of the exhibits and did not provide “surrogate testimony.”  There is no Sixth Amendment Confrontation Clause violation where, as here, an exhibit is jointly prepared, and at least one of the proponents intimately involved in the preparation of the exhibit is subject to cross-examination.


Crawford- Business Records


Melendez-Diaz v. Massachusetts, USC, June 25, 2009- prosecution sought to admit certificates of analysis that included statements that the tested substances was cocaine.  USC said that there is “no doubt” that the statements were affidavits and, therefore, testimonial.  Unless the analysts were unavailable to testify and the defendant had the opportunity to cross-examine them, the certificates’ admission violated Crawford.  The majority rejected claims that certificates of analysis are business records, which means that they are not “testimonial” because these records were developed in preparation for court.  The Court distinguished the narrow situation in which a clerk authenticates a public record: in that situation, the clerk has no authority to do anything but authenticate that record.  In contrast, the analysts in this case created the evidence at issue.


Bullcoming v. New Mexico, USC, published June 23, 2011.  Error for trial court to allow a lab analyst to testify to lab report generated by another analyst.


Grant, COA, published on September 1, 2009- Case decided under Melendez-Diaz.  D moved pursuant to 19.2-187.1, stating that he would not stipulate to the breath test operator’s testimony.  Operator did not testify.  Trial court held that it was D’s responsibility to subpoena the operator.  Both parties argued as if 187.1 applied to this case, so the COA assumed that it did, although it expressed doubt that the statute applied, because a local lab conducted the breath test, rather than a DFS lab.

Court affirmed that the operator’s affidavit constituted testimonial hearsay.  Citing Magruder, the Court noted that a D may either subpoena the breath test operator or ask the court or Commonwealth to do so.  Since D asked the Commonwealth to subpoena the operator in that case, the case was reversed.


Magruder (VSC, February 29, 2008)- consolidated cases challenging admissibility of DFS certificates of analysis pursuant to § 19.2-187 as violative of Sixth Amendment under Crawford.  Because § 19.2-187.1 adequately protects accused, the defendants waived their Sixth Amendment rights.  The Court did hint, however, that the procedure that required the defendant to call the witness may be unconstitutional under due process analysis, but that was not before it.  The Court declined to decide whether the evidence in question was testimonial.

Note: Kennedy’s dissent specifically cites Magruder and states that Virginia’s scheme is probably unconstitutional under Melendez-Diaz.  But, the majority states that defendants always have the burden of asserting their Confrontation Clause rights- a statute like § 19.2-187.1 merely governs the time for doing so.  This is probably moot after Grant.


Wimbish (COA, published, April 8, 2008)- D arrested for DUI and given breath test, resulting in certificate of analysis.  D argued that certificate of analysis was inadmissible because it violated the Sixth Amendment.  Court stated that there were two possible “witnesses” for the certificate: the machine and the trooper who operated the machine. The intoxilyzer is not a “witness” for Sixth Amendment purposes- it is a machine that is not available for cross-examination.  The attestation clause on the certificate attributed to the trooper contained two challenged statements. The first was that he used approved methods.  D had no right to cross-examine the person who’d trained the trooper- the statements was simply an expression of opinion that he’d followed the correct procedure.  The second statement said that the machine had been tested within the past six months.  This information was based on a maintenance log, which is not testimonial because a) it’s a business record and b) because they are not evidence against a particular defendant.  There was no violation.


Dickens (COA, published July 29, 2008)- sex offender registry records fall within the business records exception and their admission does not violate the Confrontation Clause.


Aguilar, VSC, September 16, 2010- Introduction of certificates of analysis without testimony by other technicians that performed work on the case did not violated Confrontation Clause.


Sanders, VSC, published June 9, 2011.  Expert relied on results of lab test in CA.  D argued that expert could not do that, since lab results violated Crawford.  VSC held that there was no evidence that the lab tech in CA knew that it could be used prosecutorially, so the lab report was not testimonial.  Therefore, the evidence was not subject to exclusion. Case also includes analysis of whether an expert may rely on evidence that itself is inadmissible under Crawford.


Unavailable child victim’s statements to teachers regarding D’s abuse admitted at trial pursuant to an Ohio rule of evidence creating a hearsay exception for such statement.  Issue before the Court was whether such statements were testimonial.   “[T]he existence vel non of an ongoing emergency is not the touchstone of the testimonial inquiry.” Instead, “whether an ongoing emergency exists is simply one factor . . . that informs the ultimate inquiry regarding the ‘primary purpose’ of an interrogation.”

Thus, under our precedents, a statement cannot fall within the Confrontation Clause unless its primary purpose was testimonial. “Where no such primary purpose exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause.”  But that does not mean that the Confrontation Clause bars every statement that satisfies the “primary purpose” test. We have recognized that the Confrontation Clause does not prohibit the introduction of out-of-court statements that would have been admissible in a criminal case at the time of the founding.

Statements made to non-law enforcement officers are less likely to be testimonial.  Victim’s age was relevant to the testimonial analysis. Court hints that out of court statements by child victims would not violate Confrontation Clause because they were admissible at founding.

Scalis’s concurrence interprets the majority opinion a limited way: using the normal police interrogation analysis.


Crawford- 911 Tapes


Caison (COA, published July 29, 2008)- D stabbed V during a fight.  A witness called 911, described V’s injuries and how they happened and described D and provided his name.  The 911 tape was admitted during D’s manslaughter trial over his objection.  The Crawford issue was whether the statements constituted testimonial hearsay.  Statements are not testimonial when made in the course of a police interrogation under circumstances objectively indicating that the purpose of the interrogation is to meet an ongoing emergency.  They are testimonial when the circumstances objectively indicate that there is no ongoing emergency and that the purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.  The facts in this case demonstrate that there was an ongoing emergency because 1) V’s life-threatening injuries and 2) the danger that the armed assailant would return to the scene to injure the witnesses.  Also, the witness spoke of things as they were happening.


Wilder, COA, published January 19, 2010- Homeless man called 911 and said he saw two men break into a building, described how they were transporting the stolen goods and the location.  He left his name.  Officers located D and co-D, who met the description.

Using criteria set forth in Davis, the Court concluded the statements were testimonial.


Confrontation Clause- General


Roadcap (COA, December 18, 2007)- permitting a child sex victim to testify via two-way closed circuit television and not training the camera on the defendant did not violate the Confrontation Clause.  In fact, the US Supreme Court permitted a one-way closed circuit television method. Maryland v. CraigCrawford did not overrule Craig.


Dickens (COA, published July 29, 2008)- probation revocation hearings are not a stage in the criminal prosecution and therefore the defendant does not have as many due process protections as a defendant in a criminal prosecution.  The Sixth Amendment’s Confrontation Clause does not apply to revocation hearings.  However, probationers do have a due process right to confront and cross-examine witnesses, and that analysis is guided by Sixth Amendment jurisprudence.  This right is not violated by admitting sex offender registry affidavit, which falls within the business records exception.


Harris (COA, published November 4, 2008)- D’s failure to appear after signing a trial setting agreement form indicating that if he failed to appear, that the trial could proceed without him constituted a waiver of his right to personally confront the witness.  His attorney was present, and did cross-examine him, but the Court cited a case that permitted the admission of testimony from a deposition where both the party and his attorney failed to attend the deposition.


Turner, COA, published May 20, 2014.  Allowing child victim to write portions of her testimony did not violate Confrontation Clause.


Confrontation Clause- Medical Treatment


Campos, COA, published June 13, 2017. Court did not address whether the statements were testimonial, as it held that D had an opportunity to cross-examine the declarant.


Right to Counsel


Rothgery v. Gillespie County (USC, June 23, 2008)- §1983 case interpreting the Sixth Amendment right to counsel.  The right to counsel attaches when prosecution is commenced.  Prosecution is commenced with the initiation of judicial criminal proceedings.  Prosecution commenced when D was brought before a magistrate for a probable cause determination and for bail setting.  It did not matter that the prosecution did not know about the case at that time.  There was a state obligation to appoint counsel within a reasonable time once a request for assistance was made.

Attachment occurs when the government has used the judicial machinery to signal a commitment to prosecute.  Once attachment occurs, the accused at least is entitled to the presence of appointed counsel during any critical stage.  A critical stage is a proceeding between an individual and agents of the state that amount to trial-like confrontation.  Counsel must be appointed within a reasonable time after attachment to allow for adequate representation at any critical stage before trial, as well as trial itself.  The Court noted that its holding was narrow- only decided on the question of whether D’s right to counsel attached after his magistration.


Montejo v. Lousiana, USC, published May 26, 2009- Court explicitly stated that there is no doubt that once the adversary judicial process has been initiated, the Sixth Amendment guarantees a defendant the right to counsel at every critical stage of the proceeding, including interrogation by the state.  The Court also stated that the defendant may waive his Sixth Amendment right to counsel, and that waiver need not be counseled.  The Court has held that a valid waiver of one’s Miranda rights constitutes an intelligent waiver of the Sixth Amendment right to counsel.

The Court made clear that the only question in that case was whether there must be a presumption that the waiver is invalid in certain circumstances.  The rule in Jackson v. Michigan developed from the rule enunciated in Edwards v. Arizona: once a defendant has asserted his Fifth Amendment right to counsel, police must cease custodial interrogation in the absence of counsel, and, under Minnick, may not initiate further custodial interrogation unless he initiates contact.  Jackson held that once a defendant requests counsel at an arraignment, courts should treat that as an invocation of the Sixth Amendment right to counsel at every stage of the proceeding.  Edwards was designed to protect defendants from police badgering Ds to change their minds about having counsel present, but if the D hasn’t invoked his right to counsel, then he hasn’t made up his mind in the first place.


Right to be Present


Nunez, COA, March 22, 2016. D given first offender.  D was deported during the deferral period.  Trial court convicted D on return date.  Under Code § 19.2-259, “[a] person tried for felony shall be personally present during the trial.” “This provision is ‘merely declaratory of a principle of the common law’; it is ‘an essential part of the process of law . . . .’” Bilokur v. Commonwealth, 221 Va. 467, 469, 270 – 3 – S.E.2d 747, 749 (1980) (quoting Noell v. Commonwealth, 135 Va. 600, 608-09, 115 S.E. 679, 681 (1923)). The statutory phrase “during the trial” has been defined as “every stage of the trial from [the accused’s] arraignment to his sentence, when anything is to be done which can affect his interest.” Palmer v. Commonwealth, 143 Va. 592, 605, 130 S.E. 398, 402 (1925). The Sixth Amendment of the United States Constitution also protects the right of the accused to be present. See Illinois v. Allen, 397 U.S. 337, 338 (1970). A defendant can forfeit his right to be present if he voluntarily absents himself from trial. Cruz v. Commonwealth, 24 Va. App. 454, 464, 482 S.E.2d 880, 885 (1997).  A jail sentence may not be imposed in defendant’s absence.

Court ruled that it was error to convict D in his absence.

Richard Collins is an attorney at Collins & Hyman, PLC, with offices in Williamsburg and Newport News.

The material in this post is for informational purposes only and should not be utilized as legal advice.  In order to properly analyze the contents as related to your specific circumstances, a consultation would be necessary.