In his notable work, Evidence Law Adrift, Mirjan Damaška identified three pillars of the common law system of determining facts in adjudication, and examined these through a comparative lens: the organisation of the trial court; the phenomenon of temporally compressed trials; and a high degree of control by parties and their counsel. In reviewing the book, I suggested that a strong concept of individual rights was another critical feature of the common law system, especially in its American variant and especially with respect to criminal defendants.
In this essay, I will explore how these four features play out in the Anglo-American and Continental system with respect to one right that has been of particular interest to me, the right of a criminal defendant to be confronted with the witnesses against him.
This right has long been one of the central aspects of the common-law system of criminal jurisprudence. Nevertheless, for much of the last two centuries the right has been swallowed up and nearly lost in the rule against hearsay. Commentators have often regarded the hearsay rule, which has no real counterpart outside the common law system, as a product of the jury system, what Damaška calls the divided trial court. I contend, however, that the hearsay rule reflected a broadening, and in effect a dilution, of the confrontation right, which had been established long before and was entirely independent of the jury system. The great breadth of the hearsay rule was attributable to the increased role of riminal defence lawyers, an aspect of the party control discussed in depth by Damaška. But a rule so broad could not be maintained rigorously without yielding absurd results, and so the hearsay rule became relatively porous. As a consequence, the meaning of the confrontation right was virtually lost. Perhaps ironically, a basically sound conception of the right, as a critical aspect of the law governing the procedure for witnesses giving testimony, emerged in Continental Europe, under the European Convention on Human Rights, in dealing with systems unencumbered by a rule against hearsay. More recently, the decision of the United States Supreme Court in Crawford v Washington2 has also established a basically sound conception of the right under the Confrontation Clause of the Sixth Amendment to the United States Constitution. Although I have described both the European and American conceptions as basically sound, they are substantially different from each other. As one might expect, the American right is more categorical in nature. Also, two of Damaška’s pillars, party control and the compressed nature of the common law trial, make salient particular issues that are of less importance in the Continental system: who produces the witness to testify and the timing of confrontation.
Publication Information & Recommended Citation
Friedman, Richard D. "The Confrontation Right Across the Systemic Divide." In Crime, Procedure and Evidence in a Comparative and International Context: Essays in Honour of Professor Mirjan Damaska, edited by J. Jackson, M. Langer, and P. Tillers, 261-71. Oxford: Hart Publishing, 2008.