Confrontation Clause

The Confrontation Clause of the Sixth Amendment to the U.S. Constitution declares, ‘‘In all criminal proceedings, the defendant shall enjoy the right . . . to be confronted with the witnesses against him.’’ The Clause protects a criminal defendant’s presumptive guarantee of an opportunity for effective face-to-face cross-examination of his accusers. The Clause is thus implicated in a child abuse case in which the child testifies in a separate room visible to the defendant only by closed circuit television or in admitting the child’s hearsay statements even when he or she has never testified under oath.

The Clause cannot be understood in isolation but rather must be seen as complementing other Sixth Amendment rights, such as those to a public trial by jury with the effective assistance of counsel. Together, these rights make ‘‘crucial workings of the government visible and keep . . . the overwhelming prosecutorial powers of the government in check.’’ Public crossexamination in a public trial helps to ensure that any effort by the prosecution to shape tainted evidence in secret or by improper methods faces public scrutiny.

The confrontation concept has ancient roots, particularly in English trials challenging civil-law–like trials by affidavit. During the American Revolutionary period, the right became associated with the struggle to enhance citizen power against the state, and its absence from the original, unamended constitution was one of the reasons cited by Anti-Federalists for their opposition to ratification of that document. Many historians thus see the direct purpose of the Clause as restraining government power.

The U.S. Supreme Court has apparently come to agree. Recently it replaced the Ohio v. Roberts test for admitting hearsay, which required proof of reliability by means of ‘‘particularized guarantees of trustworthiness’’ or a showing that a hearsay exception was ‘‘firmly rooted’’ in American history. This nearly toothless test was overruled in Crawford v. United States, which held that ‘‘testimonial’’ hearsay statements may not be used at trial unless the declarant is then unavailable and the accused had a prior opportunity for cross-examining the witness. The Court was vague about its definition of ‘‘testimonial,’’ but it clearly requires government involvement in creating evidence or the witness’s expectation of such involvement. Although commentators generally agree that the Crawford test will do a better job than Roberts in restraining the state and is more consistent with the Clause’s history, some authors worry that Crawford will make it harder for the criminal justice system to protect vulnerable populations. In particular, in child abuse, elder abuse, and battered women cases, victims are often afraid, and unwilling to testify. Other commentators worry instead that Crawford does not go far enough, the opportunity for ‘‘effective’’ cross-examination being meaningless unless supplemented by broad defense rights to pretrial discovery so that defense counsel has the informational tools with which to wage war with Leviathan.

ANDREW E. TASLITZ

References and Further Reading

• Amar, Akhil Reed. The Constitution and Criminal Procedure. 125–131 1997.
• Berger, Margaret, The Deconstitutionalization of the Confrontation Clause: A Proposal for a Prosecutorial Restraint Model, Minn. L. Rev. 76 (1992): 557.
• Douglass, John G., Beyond Admissibility: Real Confrontation, Virtual Cross-Examination, and the Right to Confront Hearsay, Geo. Wash. L. Rev. 67 (1999): 191.
• Mosteller, Robert M., Crawford v. Washington: Encouraging and Ensuring the Confrontation of Witnesses, Richmond L. Rev. 39 (2005): 511.
• Raeder, Myrna, Domestic violence, Child Abuse, and Trustworthiness Exceptions After Crawford, Crim. J. 20 (2005): 24.
• Symposium Issue, Crawford and Hearsay: One Year Later, Crim. J. 20 (2005): 1–80.
• Taslitz, Andrew E., What Remains of Reliability and Freestanding Due Process After Crawford v. Washington, Crim. J. 20 (2005): 39.

See also Confrontation and Compulsory Process; Defense, Right to Present