Confrontation & Cross-Examination
The Sixth Amendment right to confront witnesses provides that "in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him."
CONFRONTATION
The right to confront witnesses is a bedrock principle of a defedant's Sixth Amendment rights, however the constitutional analysis of whether that right has been violated has changed in recent years. In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court fundamentally changed the manner in which the right to confrontation should be analyzed. Prior to Crawford, courts could admit out-of-court statements if the hearsay statement fell within a “firmly-rooted exception” or if it bore “particularized guarantees of trustworthiness.” Ohio v. Roberts, 448 U.S. 56, 66 (1980). The Crawford decision rejected the reliability test as a basis for admissibility and instead looked first to whether the statement is "testimonial evidence." If the statement is testimonial, the Confrontatation Clause renders the statement inadmissible unless 1) the declarant was unavailable AND 2) the defendant had a prior opportunity to cross-examine the declarant.
The Court nevertheless carved out some exceptions to the right to confrontation:
1) Wrongdoing: If a witness becomes unavailable as a result of the defendant's actions, the right is forfeited.
2) Dying declaration: See Michigan v. Bryant, 562 U.S. 344 (2011) discussion of dying declaration as an historical exception to the right to confrontation.
The Court clarified Crawford’s “testimonial” requirement in Davis v. Washington, 547 U.S. 813 (2006) and Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). In Davis, the Court ruled that statements made in a 911 call and in the course of an emergency were not "testimonial" in nature and were not generated for the purpose of being used in a future prosecution. Given that the 911 call is not testimonial, the Crawford analysis does not apply.
In Melendez-Diaz, the Court considered whether a forensic lab report that was prepared for use in a criminal prosecution is “testimonial” evidence and therefore subject to the Crawford test for admissibility. The Court found that a chemist’s drug-analysis affidavit falls “within the core class of testimonial statements” identified by Crawford, because it was “functionally identical to live, in-court testimony, doing precisely what a witness does on direct examination.”
CROSS-EXAMINATION
An important corollary to the right to confront accusers, is the right to test the reliability and credibility of those witnesses through the process of cross-examination.
The right of cross-examination is more than a desirable rule of trial procedure. It is implicit in the constitutional right of confrontation, and helps assure the “accuracy of the truth-determining process.” It is, indeed, “an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal.”
Chambers v. Mississippi, 410 U.S. 284, 295 (1973)
Cross-examination is a powerful tool that can be used to bolster a party's theory of the case, contradict evidence introduced through the opposing party's witness, and ultimately to discredit the testimony of a witness. However, it can be a double-edged sword for litigators because cross-examination may "open the door" to damaging redirect examination that would have ordinarly be barred if elicited on direct examination.
If you are interested in obtaining Training and Technical Assistance (TTA) related to strengthening Sixth Amendment protections in your jurisdiction, click the link below.
| APPLY FOR TTA HERE |
CONFRONTATION & CROSS-EXAMINATION RESOURCES
CASES
Confrontation
- Crawford v. Washington, 541 U.S. 36 (2004)
- Davis v. Washington, 547 U.S. 813 (2006)
- Giles v. California, 554 U.S. 353 (2008)
- Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009)
- Michigan v. Bryant, 562 U.S. 344 (2011)
- Williams v. Illinois, 567 U.S. 50 (2012)
Cross-Examination
- Chambers v. Mississippi, 410 U.S. 284, 295 (1973)
- Davis v. Alaska, 415 U.S. 308 (1974)
LAW REVIEW ARTICLES
-
Hamm, Andrew, Shifting Confrontation from Final Product to Forensic Process: Two Maryland Cases Demonstrate the Pitfalls of Justice Thomas’s Approach to What is Testimonial and the Need for a Re-Framed Formality Test (September 13, 2020). Forthcoming in the Criminal Law Bulletin, Vol. 57.
-
William Ortman, Confrontation in the Age of Plea Bargaining,Columbia Law Review, Vol. 121, 2021.
-
Mark Spottswood, Truth, Lies, and the Confrontation Clause, 89 U. Colo. L. Rev 566 (2018).
-
Stephanos Bibas, The Limits of Textualism in Interpreting the Confrontation Clause, University of Pennsylvania Carey Law School, no. 37 (2014).
-
Sanders, Shaakirrah, Unbranding Confrontation as Only a Trial Right (October 4, 2013). 65 Hastings L. J. 1257 (2014).
-
Christine Holst, The Confrontation Clause and Pretrial Hearings: A Due Process Solution, 2010 U. Ill. L. Rev. 1599 (2010).
-
Tokson, Matthew J., Virtual Confrontation: Is Videoconference Testimony by an Unavailable Witness Constitutional? (June 11, 2007). University of Chicago Law Review, Vol. 74, No. 4, 2007,
-
Friedman, Richard D. "Remote Testimony." U. Mich. J. L. Reform 35, no. 4 (2002): 695-717
OTHER LEGAL SOURCES
- How Video Changes the Conversation: Social Science Research on Communication Over Video and Implications for the Criminal Courtroom (NLADA, CCI 2021).
- Right to Confront Adverse Witnesses: Current Doctrine
NEWS ARTICLES
- Defending The Right To Confrontation In Virtual Criminal Trials, By Michelle Bradford and David Frazee, Law360.com, October 1, 2020.
- Covid-19's Next Victim? The Rights of the Accused. (NACDL, 2020).
- How Litigators Are Confronting COVID in the Courtroom, By Norma Izzo, American Bar Association, August 31, 2020.
BLOGS, VIDEOS, WEBINARS, PODCASTS
The Confrontation Clause: Crawford v. Washington
The Confrontation Clause: Crawford v. Washington
The Sixth Amendment’s confrontation clause gives the accused the right “to be confronted with the witnesses against him” at a criminal trial. This film uses the Supreme Court case Crawford v. Washington to help explain the history and importance of the confrontation clause and why the framers knew it would be crucial to an effective system of justice.”
Confrontation of Witnesses - The Basics
Confrontation of Witnesses - The Basics
Criminal Procedure video dealing with Crawford v. Washington and its reading of the Sixth Amendment's Confrontation Clause. The lecture covers the basic holding and reasoning, and briefly previews its application in two high-volume contexts.
The Right to Face Your Accuser: Child Abuse and the Sixth Amendment
The Right to Face Your Accuser: Child Abuse and the Sixth Amendment
Should the Confrontation Clause limit the admissibility of children's statements to mandatory child abuse reporters? Richard Friedman (University of Michigan Law School) and Thomas Lyon (USC Gould School of Law) will discuss alternative perspectives on the Confrontation Clause of the Sixth Amendment. The Confrontation Clause typically guarantees citizens the right to face their accusers. The unique circumstances of child abuse raised in Ohio v. Clark perhaps require deeper consideration.