Document Type

Article

Publication Date

2002

Abstract

For several hundred years, one of the great glories of the common law system of criminal justice has been the requirement that prosecution witnesses give their testimony in the presence of the accused" face to face," in the time-honored phrase-under oath, subject to cross-examination, and, unless unfeasible, in open court. In the United States, this principle is enshrined in the Confrontation Clause of the Sixth Amendment, which provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." But now a new way is developing for witnesses for the prosecution to testify: Call 911. As we will show, it is now common practice for some prosecutors to prove a crime by offering the recording of a 911 call-that is, a telephone conversation between the alleged victim of the crime or another witness to it and an agent of an emergency assistance service. Similarly, prosecutors often offer evidence of statements made by the caller to a police officer who responded to the call. In this Article, we will describe and explain prosecutors' use and courts' tolerance of this practice. We will then use this phenomenon to explore at a broader level both what we believe are the defects in the Supreme Court's current approach to the confrontation right, as exemplified most recently in its decision in Lilly v. Virginia, and the possibility of reconceptualizing the right in a way that would restore it to its proper place.