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The Confrontation Clause of the Sixth Amendment to the United States Constitution
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 in federal courts....
 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 a crime or dramatic event through their senses , and can help certify important considerations to the crime or event....
es against him."

The Confrontation Clause has its roots in both English
England

native_name =|conventional_long_name = England|common_name = England|image_flag = Flag of England.svg|image_coat = England COA.svg|symbol_type = Royal Coat of Arms...
 common law
Common law

Common law refers to law and the corresponding Legal systems of the world developed through legal opinion of courts and similar tribunals , rather than through statute law or Executive ....
, 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 examination ....
, and Roman law
Roman law

Roman law is the law system of ancient Rome. As used in the West the term commonly refers to legal developments prior to the Roman/Byzantine state's adopting Greek language as its official language in the 7th century....
, which guaranteed persons accused of a crime the right to look their accusers in the eye. According to Acts of the Apostles
Acts of the Apostles

The Acts of the Apostles is a book of the Bible, which now stands fifth in the New Testament. It is commonly referred to as simply Acts. The title "Acts of the Apostles" was first used by Irenaeus in the late second century, but some have suggested that the title "Acts" be interpreted as "the Acts of the Holy Spirit" or even "the Acts...
 25:16, 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 Roman province constituting the Roman Empire....
 Porcius Festus
Porcius Festus

Porcius Festus was procurator of Iudaea Province from about AD 58 to 62, succeeding Antonius Felix. His exact time in office is not known. He inherited all of the problems of his predecessor in regard to the Roman practice of creating Privilege for Jews....
, discussing the proper treatment of his prisoner Paul, stated: "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."

Many decisions of the Supreme Court of the United States
Supreme Court of the United States

The Supreme Court of the United States is the highest judicial body in the United States, and leads the federal United States federal courts. It consists of the Chief Justice of the United States and eight Associate Justice of the Supreme Court of the United States, who are nominated by the President of the United States and confirmed with th...
 have affirmed the right of the accused under the Confrontation Clause to have a face-to-face confrontation with the accuser, and an opportunity to cross-examine the accuser.






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The Confrontation Clause of the Sixth Amendment to the United States Constitution
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 in federal courts....
 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 a crime or dramatic event through their senses , and can help certify important considerations to the crime or event....
es against him."

The Confrontation Clause has its roots in both English
England

native_name =|conventional_long_name = England|common_name = England|image_flag = Flag of England.svg|image_coat = England COA.svg|symbol_type = Royal Coat of Arms...
 common law
Common law

Common law refers to law and the corresponding Legal systems of the world developed through legal opinion of courts and similar tribunals , rather than through statute law or Executive ....
, 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 examination ....
, and Roman law
Roman law

Roman law is the law system of ancient Rome. As used in the West the term commonly refers to legal developments prior to the Roman/Byzantine state's adopting Greek language as its official language in the 7th century....
, which guaranteed persons accused of a crime the right to look their accusers in the eye. According to Acts of the Apostles
Acts of the Apostles

The Acts of the Apostles is a book of the Bible, which now stands fifth in the New Testament. It is commonly referred to as simply Acts. The title "Acts of the Apostles" was first used by Irenaeus in the late second century, but some have suggested that the title "Acts" be interpreted as "the Acts of the Holy Spirit" or even "the Acts...
 25:16, 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 Roman province constituting the Roman Empire....
 Porcius Festus
Porcius Festus

Porcius Festus was procurator of Iudaea Province from about AD 58 to 62, succeeding Antonius Felix. His exact time in office is not known. He inherited all of the problems of his predecessor in regard to the Roman practice of creating Privilege for Jews....
, discussing the proper treatment of his prisoner Paul, stated: "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."

Many decisions of the Supreme Court of the United States
Supreme Court of the United States

The Supreme Court of the United States is the highest judicial body in the United States, and leads the federal United States federal courts. It consists of the Chief Justice of the United States and eight Associate Justice of the Supreme Court of the United States, who are nominated by the President of the United States and confirmed with th...
 have affirmed the right of the accused under the Confrontation Clause to have a face-to-face confrontation with the accuser, and an opportunity to cross-examine the accuser. In the 2004 decision Crawford v. Washington
Crawford v. Washington

Crawford v. Washington, Case citation , is a Supreme Court of the United States 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 to the United States Constitution....
, the Supreme Court emphasized that the right to confront one's accusers could not be taken away in cases where judges believe that testimonial
Testimony

In law and in religion, testimony is a solemn attestation as to the truth of a matter....
 hearsay
Hearsay

Not to be confused with heresy.Hearsay literally means information gathered by the first person from a second person concerning some event, condition, or thing of which the first person had no direct experience....
 evidence
Evidence (law)

The law of evidence governs the use of testimony and exhibit s or other documentary material which is admissible in a dispute resolution ....
 is reliable, because such hearsay evidence had not had its reliability tested through the procedural crucible of cross-examination..

In Crawford, the Court held that testimonial statements by witnesses who do not appear at trial may not be admitted unless the witness is unavailable and there has been a prior opportunity for cross examination. Crawford limits the application of the confrontation clause to hearsay statements. Hearsay statements are assertions of fact offered as proof of the truth of the facts asserted. The central issue is whether the hearsay evidence is testimonial. If the out-of-court statement is testimonial, the prosecution cannot use it as substantive evidence unless the declarant is unavailable and the defendant has had a prior opportunity for cross-examination. If the statement is non-testimonial, the Confrontation Clause simply does not apply. The Supreme Court did not define "testimonial." The Court did provide examples of the type of statements that were testimonial -

  • Ex parte
    Ex parte

    Ex parte is a Latin law term meaning "from one party" .An ex parte decision is one decided by a judge without requiring all of the parties to the controversy to be present....
     in-court testimony or its functional equivalent - formalized testimonial materials such as affidavits, depositions or prior testimony.
  • Statement that are the product of an official inquiry - such as police interrogation.
  • Statements that are "a solemn declaration
    Sworn declaration

    A sworn declaration is a document that recites facts pertinent to a legal proceeding. It is very similar to an affidavit, but unlike an affidavit, it is not witnessed and sealed by an official such as a notary public....
     or affirmation
    Affirmation in law

    In law, an affirmation is a solemn declaration allowed to those who conscientiously object to taking an oath. An affirmation has exactly the same legal effect as an oath, but is usually taken to avoid the religious implications of an oath....
     made for the purpose of establishing or proving some fact." [See United States v. Hinton, 423 F.3d 355, 363 (3d Cir. 2005)]
  • Statements made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.


In Davis v. Washington, 126 S. Ct. 2266 (2006), the court clarified the application of the Crawford rule in the context of police interrogation. Under Davis, if the primary purpose in making the statement is to "establish or prove past events potentially relevant to later criminal prosecution" the statement is testimonial. On the other hand if the primary purpose of the police questioning was to deal with a "present or imminent risk of harm to an individual or the public," then the statement is non-testimonial and the confrontation clause does not apply.

The fact that the Confrontation Clause does not apply does not mean that the statement is automatically admissible. The statement still has to be admissible under the particular jurisdiction's rules of evidence - which usually means that the statement must meet the requirements of an exception to the hearsay rule.

The state
U.S. state

A U.S. state is any one of the 50 state of the United States that share sovereignty with the federal government of the United States . Because of this shared sovereignty, an United States is a citizen both of the federal entity and of his or her state of Domicile ....
 are free to interpret similar clauses in state constitutions more strictly than the Supreme Court's interpretation of the federal Confrontation Clause.

The Due Process Clauses
Due process

Due process is the principle that the government must respect all of the legal rights that are owed to a person according to the law of the land, instead of respecting merely some or most of those legal rights....
 of the Fifth
Article Five of the United States Constitution

Article Five of the United States Constitution describes the process whereby the Constitution may be altered. Such amendments may be proposed by the United States Congress or by a national Convention to propose amendment to U.S....
 and Fourteenth Amendments
Fourteenth Amendment to the United States Constitution

The Fourteenth Amendment to the United States Constitution is one of the post-American Civil War Reconstruction Amendments that was first intended to secure the rights of former Slavery in the United States....
 also requires confrontation as an element of due process
Due process

Due process is the principle that the government must respect all of the legal rights that are owed to a person according to the law of the land, instead of respecting merely some or most of those legal rights....
.

See also

  • Sixth Amendment to the United States Constitution
    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 in federal courts....
  • Testimony
    Testimony

    In law and in religion, testimony is a solemn attestation as to the truth of a matter....
  • 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 examination ....