The 6th Amendment's Confrontation Clause

When the U.S. Constitution was written, the founders worried that there weren't enough protections in the constitution to protect Americans from the worst of the abuses they had seen from the British crown. Therefore, the Bill of Rights was added which provided the first ten amendments that spelled out specific rights that U.S. Citizens would enjoy from their federal government.

The sixth amendment, as part of the Bill of Rights, guarantees certain rights in all criminal prosecutions. One of the enumerated rights in the 6th Amendment is the right to be confronted with the witnesses against the accused. This right is known as the Confrontation Clause. The confrontation clause guarantees criminal defendants the opportunity to face the prosecution's witnesses in the case against them and dispute the witnesses' testimony. This guarantee applies to both statements made in court and statements made outside of court that are offered as evidence during trial.

The Bill of Rights provided guarantees as to criminal prosecutions abuses from the federal government. The state governments did not have to abide by the restrictions of the 6th amendment. That changed when the 14th Amendment was passed which subsequently made the 6th Amendment's right to confrontation applicable to state courts as well as federal courts.

The Right to Cross-Examine

The right to cross-examine is the criminal defendants right to question the witnesses brought against them in court. The accused can challenge these in-court statements of the prosecutions witnesses to test for truthfulness, bias, and validity. The trial court rules can shape or limit the manner of the cross-examination to prevent repetitive or unduly harassing cross-examination. However, if a trial judge restricts cross-examination too severely, a violation of the confrontation clause may have occurred, which can be the basis of appealing the verdict.

Out-of-Court Statements

In building a case, prosecutors may want to use statements that people have made outside of the courtroom as evidence against the defendant. If the person making the statements does not appear in court to testify, however, using such statements may constitute a confrontation clause violation.

Here are some examples of out-of-court statements that may run afoul of the confrontation clause:

• Statements by a non-testifying victim made during a police interrogation
• Statements by a non-testifying victim to emergency medical responders, hospital staff or social workers
• An autopsy report by a non-testifying medical examiner

Crawford and Out-of-Court Statements

It wasn't until 2004, that the Supreme Court decided that out of court statements violated the Confrontation Clause when they decided, Crawford v. Washington. This case altered the rules for prosecutors. No longer could out-of-court statements be used against a defendant without providing an opportunity to cross-examine the witness.

Before Crawford, the Supreme Court had held that out-of-court statements did not violate the confrontation clause as long as they were adequately reliable. In Crawford, the Court changed course and determined that defendants had a right to cross-examine out-of-court statements, regardless of whether or not the statements were reliable. After Crawford, this is no longer possible.

Dying Declarations Exception to Crawford

Since Crawford the Supreme Court has carved out exceptions for out of court statements. One such exception is the "dying declaration". In Michigan v. Bryant, the Court ruled that a statement made by a dying person can be entered into evidence at trial if the statement was made to assist police with an "ongoing emergency" as opposed to merely helping the police investigate a past crime.

Notice and Demand Exception for Forensic Reports

In Melendez-Diaz v. Massachusetts, the Supreme Court extended its rule from Crawford to cover reports from forensic analysts. Specifically, the Court ruled that prosecutors cannot use a report on the chemical makeup of a batch of alleged illegal drugs if the laboratory technician who prepared the report does not testify at trial.

The Court upheld, however, the use of "notice and demand" statutes. Notice and demand statutes allow the prosecution to notify the defendant of the prosecution's intent to use a drug report without additional testimony. If the defendant does not object to the prosecution's use of the report, no confrontation clause violation has occurred.

The Court further enhanced the rules for forensic analyses in a case known as Bullcoming v. New Mexico. In that case, the Court clarified the Melendez rule by stating that the actual person who performed the forensic test must also give testimony at trial. Testimony from a different forensic analyst from the same lab would not satisfy the 6th Amendment's requirements, according to the Court.

Testimony from a different analyst could constitute an acceptable substitute, however, if the original analyst was not available to testify and the defense had a previous opportunity to perform cross-examination.

Questions About the Confrontation Clause? Contact an Attorney

If you've been accused of a criminal offense, you have the constitutional right to confront your accusers. From the 6th Amendment to more recent Supreme Court rulings, it's important to understand how the law works. A good way to learn this information is to get in touch with a local criminal defense attorney who can review your case and become your trusted legal advocate in the courtroom.