In all criminal prosecutions, the accused shall enjoy the right to... be confronted with the witnesses against him....Amendment VI
The Confrontation Clause guarantees an essential element of the adversarial trial process. The clause envisions a trial where the accused sees and hears prosecution witnesses testify in person, in open court, in his presence, and subject to cross-examination. But that basic starting point still leaves difficult questions about the scope and limits of these rights. Is face-to-face confrontation always required? Or, given modern technology, can we substitute a rough equivalent, via video camera for example, where necessary to obtain a witness's testimony? What limits can a court place on cross-examination? And when does the clause allow prosecutors to use hearsay?
The text of the clause suggests some basic limits, and some ambiguity. On the one hand, it is clear that the clause applies only to an "accused" in a "prosecution," not during investigation before any formal charge is filed. The verb "confront" has always been understood to mean more than just a right to see and listen. It includes the right to challenge the witness and to test his credibility through cross-examination. The clause applies to "witnesses against" the accused; but defining that term has proved elusive. Clearly it includes someone called by the prosecution to testify at trial. Whether it includes a hearsay declarant—a person whose out-of-court statement is offered in evidence against the accused, though that person never appears in court to testify (and thus is not subject to cross-examination)—is a question that continues to perplex the courts.
There is no record of any debate over the Confrontation Clause in the First Congress. Nevertheless, history offers some guidance to understanding the purpose of the clause. Long before the American Constitution, trials featuring live testimony in open court subject to cross-examination were typical in the English common-law courts. Those who adopted the Sixth Amendment probably had that model in mind, especially in light of the abuses the American colonists knew of or had experienced. The Framers likely were familiar with the history of early seventeenth-century "State Trials," where British prosecutors or examining magistrates obtained affidavits or depositions in private, then presented them as evidence in trials for treason against the Crown. Defendants typically, and futilely, demanded to have their accusers brought before them face-to-face. The American colonists themselves faced similar abuses in the 1760s, when Parliament allowed the colonial vice-admiralty courts to try certain offenses using a "civil law" model of trial based on written interrogatories instead of live testimony. Both George Mason and John Adams publicly condemned that practice. As the Supreme Court declared in its first major Confrontation Clause opinion, "The primary object of [the clause] was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness." Mattox v. United States (1895).
Under the current state of the law, in most circumstances, basic confrontation rights are well settled. The clause gives a defendant the right to be present in the courtroom when prosecution witnesses testify. Kentucky v. Stincer (1987). The clause guarantees an "adequate opportunity" for "effective" cross-examination. Pointer v. Texas (1965).
Applying these basic principles has proved especially difficult in two circumstances:
1. Confrontation and Hearsay. When a witness at trial merely repeats "hearsay," a statement made out of court by someone else (the declarant), and when that declarant is dead, unavailable, or refuses to testify at trial, the defendant cannot "confront" or cross-examine him. Yet, recognizing that British and American courts admitted some forms of hearsay both before and after 1791, the Court has not gone so far as to hold that all incriminating hearsay is inadmissible when the declarant cannot be confronted. In Crawford v. Washington (2004), the Court held that the prosecutor's use of "testimonial" hearsay violates the Confrontation Clause unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant. Drawing primarily on history, the Court found that the principal concern of the Confrontation Clause was the use of ex parte "testimony"—such as depositions, affidavits, or statements made by witnesses under government interrogation—against an accused. Thus, the Court held, such "testimonial" hearsay is inadmissible against a criminal defendant who has no opportunity to confront and cross-examine the declarant. Whether the Confrontation Clause applies at all to "nontestimonial" hearsay—such as excited utterances, business records and statements for purposes of medical diagnosis—remains unsettled after Crawford.
2. Child Witnesses and Face-to-Face Confrontation. The Court has limited the right to face-to-face confrontation in extraordinary cases. In Maryland v. Craig (1990), the Court allowed a child witness to testify via closed-circuit television without physically entering the courtroom because the child was emotionally unable to testify in the defendant's presence. The Court found that the process nevertheless satisfied the Confrontation Clause because it allowed for cross-examination and for the jury, defendant, and counsel to observe the demeanor of the child while she testified.
In sum, the Confrontation Clause prescribes an adversarial trial process that is designed to get at the truth by allowing defendants to challenge prosecution witnesses through face-to-face testimony and cross-examination. In order to accommodate some hearsay, and to allow for extraordinary cases where witnesses are incapable of testifying in the normal court setting, the Court has allowed exceptions to the basic rule, but only where the Court finds the resulting evidence sufficiently "reliable" in the absence of confrontation.
- John G. Douglass
- Professor of Law
- University of Richmond School of Law