Document Type
Article
Publication Date
2003
Abstract
This Essay argues that the Confrontation Clause of the Sixth Amendment ought to be re-understood as primarily an accuser's obligation rather than primarily as a defendant's right. We demand that those who would perform this potentially dangerous, morally weighty, and symbolically loaded act-the act of accusation-be willing to do so face to face. We impose this requirement not only because out-of-court accusations are unreliable, though they may often be, but also in response to a deep, if inchoate, feeling that it is somehow beneath us inconsistent with our sense of who we want to be as a community-to allow witnesses against criminal defendants to "hide behind the shadow" when making an accusation.1 On this interpretation, requiring confrontation is a way of reminding ourselves that we are, or least want to see ourselves as, the kind of people who decline to countenance or abet what we see as the cowardly and ignoble practice of hidden accusation. This approach, though perhaps not mandated by the text or history of the Confrontation Clause, is at least as consistent with both as is the current analytical framework, which treats the right of confrontation as an appendage to the rule against hearsay.
Recommended Citation
Clark, Sherman J. "An Accuser-Obligation Approach to the Confrontation Clause." Nebraska Law Review 81, no. 3 (2003): 1258-1286.