Confrontation Clause
Encyclopedia
The Confrontation Clause of the Sixth Amendment to the United States Constitution
provides that "in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witness
es against him." Generally, the right is to have a face-to-face confrontation with witnesses who are offering testimonial evidence against the accused in the form of cross-examination during a trial. The Fourteenth Amendment makes the right to confrontation applicable to the states and not just the federal government. The right only applies to criminal prosecutions, not civil cases or other proceedings.
The Confrontation Clause has its roots in both English
common law
, protecting the right of cross-examination
, and Roman law
, which guaranteed persons accused of a crime the right to look their accusers in the eye. In noting the right's long history, the United States Supreme Court has cited Acts of the Apostles
25:16, which reports the Roman governor
Porcius Festus
, discussing the proper treatment of his prisoner Paul: "It is not the manner of the Romans to deliver any man up to die before the accused has met his accusers face-to-face, and has been given a chance to defend himself against the charges." It has also cited Shakespeare's Richard II
, Blackstone's treatise, and statutes.
, the Supreme Court of the United States
significantly redefined the application of the right to confrontation. In Crawford, the Supreme Court changed the inquiry from whether the evidence offered had an "indicia of reliability" to whether the evidence
is testimonial
hearsay
. The shift was from a substantive and subjective inquiry into the reliability of the evidence, to a procedural question of whether the defendant had been afforded the right to confront her or his accuser. The Court implicitly noted the shift, "Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because the defendant is obviously guilty."
The Crawford Court decided the key was whether the evidence was testimonial because of the Sixth Amendment's use of the word "witness." Quoting the dictionary, the Court explained that a witness is one who "bear[s] testimony" and that "testimony" refers to a "solemn declaration or affirmation made for the purpose of establishing some fact."
Nonetheless, in Crawford, the Supreme Court explicitly declined to provide a "comprehensive" definition of "testimonial" evidence (and, thus evidence subject to the requirements of the Confrontation Clause). In Davis v. Washington and its companion case, Hammon v. Indiana, the Court undertook exactly this task. The Court explained what constitutes testimonial hearsay:
The Davis Court noted several factors that, objectively considered, help determine whether a statement is testimonial: 1) whether the statement describes past events or events as they are happening, 2) whether the purpose of the statement is to assist in investigation of a crime or, on the other hand, provide information relevant to some other purpose, 3) the level of formality of the exchange in which the statement is made. The court noted that a single conversation with, for example, a 911 operator may contain both statements that are intended to address an ongoing emergency and statements that are for the purpose of assisting police investigation of a crime. The latter are testimonial statements because they are the sort of statements that an objectively reasonable person, listening to the statements, would expect to be used in an investigation or prosecution.
The Crawford decision left the other basic components of the Confrontation Clause's applicability—the witness's availability and the scope of the cross examination—unchanged.
A witness may be unavailable for a variety of reasons. A common reason for a witness to be unavailable is that the witness is claiming a Fifth Amendment privilege against self incrimination. Other privileges are also a source of unavailability. Witnesses may also be unavailable because they have died, had memory loss, or simply decided not to cooperate as a witness against the defendant.
The more obvious violations of the right to cross-examine witnesses are those where the defendant has never had the opportunity to cross-examine the witness at all, in any setting, or on any subject. The closer cases are those where some cross-examination has occurred, either at trial or prior to trial.
Generally, having the opportunity to cross-examine a witness at trial will satisfy the Confrontation Clause's guarantee. And trial courts are given "broad discretion . . . to preclude repetitive and unduly harassing interrogation." The Supreme Court has emphasized that the "Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is in whatever way, and to whatever extent, the defendant might wish. Nonetheless, a trial court cannot preclude cross-examination on some subjects. Besides the subject matter of the case, the crime for which a defendant is charged, a defendant has the right to attack the credibility or impeach the testimony of the witness. Despite trial courts' "broad discretion", it is an error to limit defendants from cross-examining witnesses on an area that would expose a "prototypical form of bias" that would be relevant to the jury's assessment of that witness's credibility. Examples of such biases include being on probation as a juvenile delinquent, even where the state normally considers such a status to be protected confidential information; having charges dropped in exchange for testimony, despite a specific denial that dropping the charges had any effect on the testimony; and shared allegiances of the victim and witness, including gang membership.
It is the prosecution's burden to prove, by a preponderance of evidence, that the defendant secured the witness's unavailability for the purpose of preventing the witness to testify.
The paradigmatic means of securing the unavailability of a witness is through their murder. But mere coercion or threats will also suffice.
Where a defendant fails to object to the inadmissible evidence at the time of trial or fails to specify that she or he is objecting on Confrontation Clause grounds, the reviewing court will sometimes only review for more substantial errors such as "plain error" or an error that results in a manifest injustice. Federal Circuit Courts of Appeal review unobjected to Confrontation Clause errors for plain error. State courts vary widely in their requirements for reviewing Confrontation Clause errors, but many review for either plain error, manifest injustice, or another similar standard. In many instances, courts reverse on Confrontation Clause grounds without analyzing whether an error is harmless. The most common reason for omitting such an analysis is the government's failure to raise harmlessness as an issue. Generally, defendants do not raise harmlessness unless the government does so.
are free to interpret similar clauses in state constitutions more strictly than the Supreme Court's interpretation of the federal Confrontation Clause.
Because many jurisdictions, including the federal courts and a number of states, practice constitutional abstention many cases that include Confrontation Clause violations are decided on other grounds. Constitutional abstention is a judicial preference to resolve dispositive non-constitutional issues first, and only turning to constitutional issues if they are necessary to resolve the case. In Confrontation Clause cases, constitutional abstention most typically occurs where the court resolves a hearsay issue based on the relevant evidence code before turning to the Confrontation Clause analysis. Thus, a preference for interpreting other closely related laws first often leaves Confrontation Clause issues unaddressed.
of the Fifth
and Fourteenth Amendments
also require confrontation as an element of due process
. State statutes and constitutions are another source of the right to confront witnesses.
Sixth Amendment to the United States Constitution
The Sixth Amendment to the United States Constitution is the part of the United States Bill of Rights which sets forth rights related to criminal prosecutions...
provides that "in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witness
Witness
A witness is someone who has firsthand knowledge about an event, or in the criminal justice systems usually a crime, through his or her senses and can help certify important considerations about the crime or event. A witness who has seen the event first hand is known as an eyewitness...
es against him." Generally, the right is to have a face-to-face confrontation with witnesses who are offering testimonial evidence against the accused in the form of cross-examination during a trial. The Fourteenth Amendment makes the right to confrontation applicable to the states and not just the federal government. The right only applies to criminal prosecutions, not civil cases or other proceedings.
The Confrontation Clause has its roots in both English
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
, protecting the right of cross-examination
Cross-examination
In law, cross-examination is the interrogation of a witness called by one's opponent. It is preceded by direct examination and may be followed by a redirect .- Variations by Jurisdiction :In...
, and Roman law
Roman law
Roman law is the legal system of ancient Rome, and the legal developments which occurred before the 7th century AD — when the Roman–Byzantine state adopted Greek as the language of government. The development of Roman law comprises more than a thousand years of jurisprudence — from the Twelve...
, which guaranteed persons accused of a crime the right to look their accusers in the eye. In noting the right's long history, the United States Supreme Court has cited Acts of the Apostles
Acts of the Apostles
The Acts of the Apostles , usually referred to simply as Acts, is the fifth book of the New Testament; Acts outlines the history of the Apostolic Age...
25:16, which reports the Roman governor
Roman governor
A Roman governor was an official either elected or appointed to be the chief administrator of Roman law throughout one or more of the many provinces constituting the Roman Empire...
Porcius Festus
Porcius Festus
Porcius Festus was procurator of Judea from about AD 59 to 62, succeeding Antonius Felix. His exact time in office is not known. The earliest proposed date for the start of his term is c. A.D. 55-6, while the latest is A.D. 61. These extremes have not gained much support and most scholars opt...
, discussing the proper treatment of his prisoner Paul: "It is not the manner of the Romans to deliver any man up to die before the accused has met his accusers face-to-face, and has been given a chance to defend himself against the charges." It has also cited Shakespeare's Richard II
Richard II (play)
King Richard the Second is a history play by William Shakespeare believed to be written in approximately 1595. It is based on the life of King Richard II of England and is the first part of a tetralogy, referred to by some scholars as the Henriad, followed by three plays concerning Richard's...
, Blackstone's treatise, and statutes.
Testimonial hearsay
In 2004, in Crawford v. WashingtonCrawford v. Washington
Crawford v. Washington, 541 U.S. 36 , is a United States Supreme Court decision that reformulated the standard for determining when the admission of hearsay statements in criminal cases is permitted under the Confrontation Clause of the Sixth Amendment...
, the Supreme Court of the United States
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
significantly redefined the application of the right to confrontation. In Crawford, the Supreme Court changed the inquiry from whether the evidence offered had an "indicia of reliability" to whether the evidence
Evidence (law)
The law of evidence encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence can be considered by the trier of fact in reaching its decision and, sometimes, the weight that may be given to that evidence...
is testimonial
Testimony
In law and in religion, testimony is a solemn attestation as to the truth of a matter. All testimonies should be well thought out and truthful. It was the custom in Ancient Rome for the men to place their right hand on a Bible when taking an oath...
hearsay
Hearsay
Hearsay is information gathered by one person from another person concerning some event, condition, or thing of which the first person had no direct experience. When submitted as evidence, such statements are called hearsay evidence. As a legal term, "hearsay" can also have the narrower meaning of...
. The shift was from a substantive and subjective inquiry into the reliability of the evidence, to a procedural question of whether the defendant had been afforded the right to confront her or his accuser. The Court implicitly noted the shift, "Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because the defendant is obviously guilty."
The Crawford Court decided the key was whether the evidence was testimonial because of the Sixth Amendment's use of the word "witness." Quoting the dictionary, the Court explained that a witness is one who "bear[s] testimony" and that "testimony" refers to a "solemn declaration or affirmation made for the purpose of establishing some fact."
Nonetheless, in Crawford, the Supreme Court explicitly declined to provide a "comprehensive" definition of "testimonial" evidence (and, thus evidence subject to the requirements of the Confrontation Clause). In Davis v. Washington and its companion case, Hammon v. Indiana, the Court undertook exactly this task. The Court explained what constitutes testimonial hearsay:
- Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances indicate that there is no ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
The Davis Court noted several factors that, objectively considered, help determine whether a statement is testimonial: 1) whether the statement describes past events or events as they are happening, 2) whether the purpose of the statement is to assist in investigation of a crime or, on the other hand, provide information relevant to some other purpose, 3) the level of formality of the exchange in which the statement is made. The court noted that a single conversation with, for example, a 911 operator may contain both statements that are intended to address an ongoing emergency and statements that are for the purpose of assisting police investigation of a crime. The latter are testimonial statements because they are the sort of statements that an objectively reasonable person, listening to the statements, would expect to be used in an investigation or prosecution.
The Crawford decision left the other basic components of the Confrontation Clause's applicability—the witness's availability and the scope of the cross examination—unchanged.
Availability
If a statement is testimonial, the person making the statement must generally be available for cross examination. An exception to this rule is if the witness is unavailable. But even where the witness is unavailable, the defendant must have had a prior opportunity to confront the witness via cross examination. The latter requirement, cross examination, is discussed below.A witness may be unavailable for a variety of reasons. A common reason for a witness to be unavailable is that the witness is claiming a Fifth Amendment privilege against self incrimination. Other privileges are also a source of unavailability. Witnesses may also be unavailable because they have died, had memory loss, or simply decided not to cooperate as a witness against the defendant.
Cross-examination
Even where the witness is unavailable, the defendant usually has a right to cross-examine the witness. An exception to this rule, forfeiture by wrongdoing, is discussed below.The more obvious violations of the right to cross-examine witnesses are those where the defendant has never had the opportunity to cross-examine the witness at all, in any setting, or on any subject. The closer cases are those where some cross-examination has occurred, either at trial or prior to trial.
Generally, having the opportunity to cross-examine a witness at trial will satisfy the Confrontation Clause's guarantee. And trial courts are given "broad discretion . . . to preclude repetitive and unduly harassing interrogation." The Supreme Court has emphasized that the "Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is in whatever way, and to whatever extent, the defendant might wish. Nonetheless, a trial court cannot preclude cross-examination on some subjects. Besides the subject matter of the case, the crime for which a defendant is charged, a defendant has the right to attack the credibility or impeach the testimony of the witness. Despite trial courts' "broad discretion", it is an error to limit defendants from cross-examining witnesses on an area that would expose a "prototypical form of bias" that would be relevant to the jury's assessment of that witness's credibility. Examples of such biases include being on probation as a juvenile delinquent, even where the state normally considers such a status to be protected confidential information; having charges dropped in exchange for testimony, despite a specific denial that dropping the charges had any effect on the testimony; and shared allegiances of the victim and witness, including gang membership.
Exceptions to the right of confrontation
In Crawford, the Supreme Court noted that two exceptions to the common law right of confrontation were acknowledged at the time the constitution was written: the dying declaration and forfeiture by wrongdoing. Only the latter has been explicitly adopted by the Court.Forfeiture by wrongdoing
Where the defendant makes the witness unavailable for the purpose of preventing the witness from testifying, the defendant forfeits the right to confront the witness. This exception only applies to circumstances where the defendant acts with the purpose of preventing the testimony, but not to other circumstances where the defendant may, nonetheless be blameworthy. For example, the testimonial statements of an uncross-examined murder victim are not admissible against the person who committed the murder unless the murder was committed for the purpose of preventing the victim from testifying.It is the prosecution's burden to prove, by a preponderance of evidence, that the defendant secured the witness's unavailability for the purpose of preventing the witness to testify.
The paradigmatic means of securing the unavailability of a witness is through their murder. But mere coercion or threats will also suffice.
Dying declarations
Dying declarations, although noted by the Crawford Court as a historic exception to the common law right of confrontation, have not yet been explicitly acknowledged by the Court as an exception to the Confrontation Clause right. Lower courts have recognized the exception, but during oral argument in Michigan v. Bryant, the Court discussed the exception at length and frequently implied that the exception might apply, as it had done in Crawford and Giles.Hearsay exceptions and other rules of evidence (non-exceptions)
Because the U.S. Constitution is the supreme law of the land and because the Fourteenth Amendment makes the Confrontation Clause applicable against the states, rules of evidence, such as hearsay exceptions and rape shield laws must give way to Confrontation Clause rights.Harmless Error and Standards of review
Confrontation Clause violations are usually subject to harmless error review. This means that even if evidence has been admitted in violation of the Confrontation Clause, a defendant is not entitled to a new trial if the reviewing court is convinced beyond a reasonable doubt that the inadmissible evidence did not contribute to the verdict. Harmless error is not a standard of review, and is an analysis for whether the error might have affected the jury's decision.Where a defendant fails to object to the inadmissible evidence at the time of trial or fails to specify that she or he is objecting on Confrontation Clause grounds, the reviewing court will sometimes only review for more substantial errors such as "plain error" or an error that results in a manifest injustice. Federal Circuit Courts of Appeal review unobjected to Confrontation Clause errors for plain error. State courts vary widely in their requirements for reviewing Confrontation Clause errors, but many review for either plain error, manifest injustice, or another similar standard. In many instances, courts reverse on Confrontation Clause grounds without analyzing whether an error is harmless. The most common reason for omitting such an analysis is the government's failure to raise harmlessness as an issue. Generally, defendants do not raise harmlessness unless the government does so.
Interaction with other laws
The statesU.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
are free to interpret similar clauses in state constitutions more strictly than the Supreme Court's interpretation of the federal Confrontation Clause.
Because many jurisdictions, including the federal courts and a number of states, practice constitutional abstention many cases that include Confrontation Clause violations are decided on other grounds. Constitutional abstention is a judicial preference to resolve dispositive non-constitutional issues first, and only turning to constitutional issues if they are necessary to resolve the case. In Confrontation Clause cases, constitutional abstention most typically occurs where the court resolves a hearsay issue based on the relevant evidence code before turning to the Confrontation Clause analysis. Thus, a preference for interpreting other closely related laws first often leaves Confrontation Clause issues unaddressed.
Other sources of a right to confront witnesses
The Due Process ClausesDue process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
of the Fifth
Fifth Amendment to the United States Constitution
The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...
and Fourteenth Amendments
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
also require confrontation as an element of due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
. State statutes and constitutions are another source of the right to confront witnesses.
See also
- Sixth Amendment to the United States ConstitutionSixth Amendment to the United States ConstitutionThe Sixth Amendment to the United States Constitution is the part of the United States Bill of Rights which sets forth rights related to criminal prosecutions...
- Melendez-Diaz v. MassachusettsMelendez-Diaz v. MassachusettsMelendez-Diaz v. Massachusetts, 129 S.Ct. 2527 , is a United States Supreme Court case in which the Court held that it was a violation of the Sixth Amendment right of confrontation for a prosecutor to submit a chemical drug test report without the testimony of the person who performed the test...
- TestimonyTestimonyIn law and in religion, testimony is a solemn attestation as to the truth of a matter. All testimonies should be well thought out and truthful. It was the custom in Ancient Rome for the men to place their right hand on a Bible when taking an oath...
- Cross-examinationCross-examinationIn law, cross-examination is the interrogation of a witness called by one's opponent. It is preceded by direct examination and may be followed by a redirect .- Variations by Jurisdiction :In...
- Maryland v. CraigMaryland v. CraigMaryland v. Craig, 497 U.S. 836 , was a case decided by the Supreme Court of the United States under the Sixth Amendment to the United States Constitution...
(testimony by closed-circuit television)