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Does the Confrontation Clause apply to police action in West Virginia?

You may be familiar with the Confrontation Clause contained within the Sixth Amendment to the United States Constitution (and Section 14 of Article III of the West Virginia Constitution). That clause provides as follows (in part): "In all criminal prosecutions, the accused shall . . . be confronted with the witnesses against him[.]"

What this actually meant was subject to much debate until 2004, when the Supreme Court decided Crawford v. Washington. In 2006, the Supreme Court of Appeals of West Virginia adopted the federal rule in State v. Mechling. 219 W.Va. 366, 633 S.E.2d 311. Justice Starcher wrote the opinion over the supposed dissent of Justice Maynard, which he never published.

Fast forward four years and the unpublished dissent of Justice Maynard seems to manifest itself in State v. Morris. 227 W.Va. 76, 705 S.E.2d 583 (2010). In State v. Morris, issued via per curiam opinion (Latin for "by the court"), meaning by the unanimous agreement of the justices, over the dissent of former Justice Ketchum, the Supreme Court of Appeals of West Virginia "held that testimony by police officers involving matters they learned from other persons offered merely to explain prior conduct in carrying out the investigation is not hearsay." Hearsay is generally regarded as a prerequisite to a confrontation clause challenge. In essence, the supposed unanimous court, held that the officer's state of mind in determining whether to arrest someone is relevant as to whether the defendant committed the crime. This rule allows a nearly unlimited stream of information to flow through officers that cannot be confronted as the witness is not required to come to court.

In his dissent, former Justice Ketchum stated the following:

"Why would a jury only deciding guilty or innocence need to know why the police arrested the defendant? Why the police officer arrested the defendant was not relevant to any issue in the case. . . . The only valid reason for asking a police officer why he arrested a person is to establish probable cause for the arrest. Probable cause is decided by the court out of the presence of the jury, or by a Grand Jury. The petit jury only decides guilt or innocence, not whether the police officer had probable cause to arrest the defendant in the first place."

In short, the power of Crawford was severely eroded in State v. Morris, which continues to be good law today. In the words of former Justice Ketchum, "The need for this evidence is slight and the likelihood of misuse great."


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