Document Type

Article

Publication Date

1-2004

Abstract

The Sixth Amendment to the United States Constitution protects the right of an accused 'to confront the witnesses against him'. The United States Supreme Court has treated this Confrontation Clause as a broad but rather easily rebuttable rule against using hearsay on behalf of a criminal prosecution; with respect to most hearsay, the exclusionary rule is overcome if the court is persuaded that the statement is sufficiently reliable, and the court can reach that conclusion if the statement fits within a 'firmly rooted' hearsay exception. This article argues that this framework should be abandoned. The clause should not be regarded as a constitutionalisation of the rule against hearsay. Rather, it reflects a principle of long standing in common law systems, and even in some others, that a statement that is testimonial in nature may not be introduced against a criminal defendant unless he has had an opportunity to confront and examine the witness who made the statement. Recognition of that principle, which may be achieved in the pending case of Crawford v Washington, is of interest not only in the United States, but to all adjudicative systems.

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