The Confrontation Right

The Confrontation Right

The Confrontation Clause is one entry in the Sixth Amendment's list of trial guarantees, and its operative words are few: the accused has the right "to be confronted with the witnesses against him."¹ The Supreme Court has described this as a bedrock procedural guarantee that governs federal and state prosecutions alike, because the Fourteenth Amendment carries it to the states, as held in Pointer v. Texas.² A defendant tried in a state courthouse therefore holds the same right as one tried in federal court. The text does not say how far the right reaches, though. "Witnesses against" the accused could mean only those who testify at trial, or everyone whose out-of-court statements the prosecution offers, or something in between, and the words themselves do not choose.³ The later sections work out that choice. The first task is to see what the right is meant to accomplish.

What the Clause secures is the chance to test an accusing witness in front of the people who will decide the case. Four features work together: the witness is physically present, speaks under oath, answers cross-examination, and is watched by the jury while doing so.⁴ Each does separate work. The oath impresses on the witness the seriousness of the occasion and exposes a liar to the penalty for perjury. Cross-examination probes whether the witness perceived accurately, remembers accurately, and is telling the truth, and it has been described as the "greatest legal engine ever invented for the discovery of truth."⁵ Demeanor lets jurors see how the witness handles the questions and judge whether the account deserves belief.⁶ An accusation delivered on paper has none of these features, so it reaches the jury untested, and the absence of proper confrontation at trial calls the integrity of the fact-finding process into question.⁷

The shape of the guarantee comes from a historical contest between two ways of taking testimony. English common law took testimony live in court, subject to adversarial testing, while the continental system examined witnesses privately before judicial officers.⁸ When English officials examined suspects and witnesses before trial and had the results read in court in place of live testimony, prisoners demanded to have their accusers brought before them face to face, and some of those demands were refused.⁹ The abuse the drafters most likely had in mind was the treason trial of Sir Walter Raleigh, who was convicted principally on the out-of-court confession of an alleged co-conspirator who was never produced for live testimony or cross-examination. The Clause answers that history by refusing to let an accuser stay out of sight. The refusal also has an incentive logic, since a lie is harder to tell about a person to that person's face than behind that person's back.¹⁰

In practice the Court has applied the Clause to three situations: testimony from a witness who is not in the direct, face-to-face presence of the accused; hearsay statements of a person who is not called as a witness; and limits placed on the defense's cross-examination of prosecution witnesses.¹¹ The first and third connect to the presence and live-testimony rules later in this chapter, while the second is the hearsay problem that occupies the next sections. The right also has boundaries. It belongs to the accused alone, and it reaches only evidence offered against the accused in a criminal prosecution, not evidence the defense presents.¹² It is also a trial right, and most courts, following Williams v. New York, hold that it does not extend to sentencing hearings.¹³

The hearsay situation is where the text and the working law pull apart. In the typical case, A makes a statement to B, and B testifies about it at trial. The accused can cross-examine B, but the real witness against the accused is A, whom no one can question about whether A was lying or mistaken.¹⁴ Read with strict literalism, the Clause would require exclusion, on objection, of any statement by a declarant who is not present at trial, even a dying declaration, and it would therefore abrogate virtually every hearsay exception, "a result long rejected as unintended and too extreme."¹⁵ The same source also notes that the historical evidence leaves little doubt that the Clause was meant to exclude some hearsay.¹⁶ The Clause is thus neither silent about absent declarants nor an absolute ban on every absent declarant's statement. Which statements it excludes, and by what test, is the question that the Roberts and Crawford frameworks answer in the next sections.

Because a literal reading is unworkable, the Court has treated face-to-face confrontation as a strong preference that can bend. The Clause reflects a preference for confrontation at trial, and that preference must occasionally give way to considerations of public policy and the necessities of the case, since every jurisdiction has a strong interest in effective law enforcement and workable rules of evidence.¹⁷ The narrow limit is illustrated by Maryland v. Craig, where a child abuse victim testified by one-way closed-circuit television while the judge, jury, and defendant watched from the courtroom. The procedure survives only if it is necessary to protect the child from trauma that would impair the child's ability to communicate, and only if the testimony still has the oath, cross-examination, and observable demeanor that make it reliable.¹⁸ The missing element must therefore be justified by a specific public purpose, and the others must remain. A screen placed between a child witness and the defendant without any individualized finding of need fails that test.¹⁹