The Confrontation Clause Re-Rooted and Transformed

Authors

Richard D. Friedman, University of Michigan Law SchoolFollow

Document Type

Article

Publication Date

1-2004

Abstract

For several centuries, prosecution witnesses in criminal cases have given their testimony under oath, face to face with the accused, and subject to cross-examination at trial. The Confrontation Clause of the Sixth Amendment to the U.S. Constitution guarantees the procedure, providing that ‘‘[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witness against him.’’ In recent decades, however, judicial protection of the right has been lax, because the U.S. Supreme Court has tolerated admission of outof- court statements against the accused, without cross-examination, if the statements are deemed ‘‘reliable’’ or ‘‘trustworthy.’’ This year, in Crawford v. Washington, the Supreme Court did a sharp aboutface, holding that a testimonial statement cannot be admitted against an accused, no matter how reliable a court may deem it to be, unless the accused has had an adequate opportunity to cross-examine the witness who made the statement.

Recommended Citation

Friedman, Richard D. "The Confrontation Clause Re-Rooted and Transformed." Cato Sup. Ct. Rev. 2003-2004 (2004): 439-68. (Portions of this article have previously been published in "'Face to Face': Rediscovering the Right to Confront Prosecution Witnesses." Int'l J. Evidence & Proof 8, no. 1 (2004): 1-30 and "Adjusting to Crawford: High Court Decision Restores Confrontation Clause Protection." Criminal Justice 19, no. 2 (2004): 4-13.)