The Sixth Amendment's Confrontation Clause

The Craig case stands for the notion that confrontation clause exceptions exist in certain situations. As seen in the case, the potential for serious emotional distress may allow such an exception (although a state law specifying such an exception, as Maryland had, would likely play a role in the analysis).

In the spring and summer of 1787, representatives from the original 13 colonies met to discuss the structure of the United States government. Having just won their independence from the British crown in the Revolutionary War, these representatives, known as the framers, also discussed the proposed government's limits.

The convention resulted in the U.S. Constitution, the first written constitution in history. Soon after the Constitution's ratification, Congress amended it with the Bill of Rights in 1791. The Bill of Rights provided the first 10 amendments. These spelled out specific rights U.S. citizens possess. Perhaps more importantly, it placed specific limits on the government.

The Sixth Amendment guarantees defendants certain rights in all criminal prosecutions. These rights protect criminal defendants from abuse by state and federal governments. These rights include:

This article summarizes criminal defendants' right to confront witnesses brought against them. This is also known as the right of confrontation. The right stems from the Sixth Amendment's confrontation clause. It guarantees criminal defendants the opportunity to face the prosecution's witnesses in the case against them and dispute the witnesses' testimonial evidence. This right applies to the following types of statements:

  • Statements made in court
  • Statements made outside of court that the prosecution offers as evidence during a criminal trial

Consider browsing FindLaw's Criminal Rights section for more information about your Sixth Amendment rights. If you need specific information regarding pending criminal charges, consider contacting a criminal defense attorney.

The Confrontation Clause Explained

The confrontation clause gives a criminal defendant the right of confrontation. This means the defendant has a right to cross-examine a witness who testifies against them. The Sixth Amendment's confrontation clause states, "[I]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him."

The right to confront one's accuser or an adversarial witness existed long before the states ratified the Constitution. The confrontation clause was present in the common law, and there is evidence that it existed in Roman law.

Initially, the Sixth Amendment's protections only applied to prosecutions in federal courts. However, the Fourteenth Amendment applied the protection to the state courts. Thus, it applies in any criminal prosecution.

The Right to Cross-Examine

The right to cross-examine refers to the criminal defendant's right to question the prosecution's witnesses brought against them in court. The accused can challenge such witnesses' in-court statements to test for the following, among others:

  • Truthfulness
  • Bias
  • Validity

For example, suppose police arrest a suspect on suspicion of first-degree murder. At the defendant's criminal trial, a witness testified that they saw the defendant leaving the crime scene while holding a bloody knife. The confrontation clause gives the defendant the right to object to the witness's testimony and confront them face-to-face in court. This may include asking questions that tend to discredit the witness.

The trial court rules may shape or limit the manner of cross-examination. They do this to prevent repetitive or unduly harassing cross-examination. However, if a trial judge restricts cross-examination too severely, it may violate the defendant's rights. A defendant may appeal a verdict based on such a violation.

Out-of-Court Statements

Prosecutors may want to use statements made outside of the courtroom as evidence against the defendant. Such statements, when introduced for the truth of the matter asserted, are known as hearsay.

For example, suppose the prosecution alleges that Jon stole Alex's car. At the trial, Jon testified that his sister, Rachel, told him that her husband, James, stole the car. James did not directly tell Jon that he stole the car, and Jon did not witness James stealing the car. Therefore, Rachel's statement is hearsay, and the court will likely exclude it.

Hearsay statements are presumably inadmissible at trial. The justification for not admitting hearsay statements is they tend to lack reliability and credibility. Such statements are not made under oath under penalty of perjury. Thus, in theory, they lack the credibility of testimonial statements made in court. The rules of evidence, however, include many hearsay exceptions.

If the person making the statements does not appear in court to testify, 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:

  • A nontestifying victim's statements made during a police interrogation
  • A nontestifying victim's statements to emergency medical responders, hospital staff, or social workers
  • A nontestifying medical examiner's autopsy report
  • An affidavit regarding the results of a laboratory report

Although the confrontation clause is a constitutional right, Supreme Court case law has clarified the right of confrontation. Additionally, it has carved out exceptions to the general rule of face-to-face confrontation.

Confrontation Clause Case Law

For many years, the confrontation clause was an absolute right to confront a witness face-to-face. However, recent cases established exceptions to the right of confrontation. Additionally, given the technological advances available today, courts now allow some witnesses to testify via videoconference or something similar.

Maryland v. Craig (1990)

In 1990, the Supreme Court decided the case Maryland v. Craig. There, the state of Maryland charged a woman with the sexual assault of a child. During the trial, the court allowed the child to testify in a separate room outside the defendant's presence. A Maryland law provided for such an exception due to the emotional trauma the child may go through were they to testify in court.

The judge, the defendant's attorney, and the prosecutor sat in the room with the child. The defendant's attorney was able to cross-examine the child in the room. The defendant and the jury could observe the child's testimony via closed-circuit television.

The jury ultimately convicted the woman of sexual assault. The Maryland Court of Appeals reversed the conviction. The Court of Appeals determined that the testimony violated the accused's right of confrontation. Subsequently, the U.S. Supreme Court granted a review of the case.

The Supreme Court reinstated the trial court's conviction. The court wrote that the confrontation clause prefers in-person confrontation. But, in certain situations, the court may limit the confrontation clause's application.

Specifically, the court determined that the trial court's process of obtaining the child's testimony satisfied the confrontation clause. The court noted the defendant's attorney was in the room with the child. This satisfied the defendant's right of cross-examination.

Additionally, the defendant could observe the child while they were testifying. This process, the court said, provided the defendant a sufficient opportunity to test the witness's credibility. Thus, the trial court did not violate the defendant's right to confront the witness.

Craig also overruled a 1988 Supreme Court case, Coy v. Iowa. The facts in Coy were similar to the Craig case. It involved an adult charged with sexually assaulting a child. The child testified in court but did so behind a screen supplied by the trial court. The Supreme Court invalidated the screen's use partly because it obstructed the jury's ability to observe the child witness's testimonial statements.

More recently, courts have relied on Craig to allow witnesses to testify via videoconference. For example, during the COVID-19 pandemic, courts relied on Craig to allow parties and witnesses to appear via videoconference.

Crawford and Out-of-Court Statements

The Craig case relied on a 1980 Supreme Court case, Ohio v. Roberts. There, the Court held that out-of-court statements did not violate the confrontation clause as long as they were reliable. Thus, courts used a reliability test to determine whether to admit such statements with regard to the confrontation clause.

In Crawford v. Washington (2004), the Supreme Court overruled Roberts. In doing so, it changed the confrontation clause analysis in criminal cases.

The court determined that a witness's out-of-court statements are inadmissible regardless of the statement's reliability. But, if the witness is unavailable to testify, and the defendant has an opportunity to cross-examine the defendant before the trial, the trial court may admit the statement. Thus, prosecutors can no longer use out-of-court statements against a defendant unless the defendant has an opportunity to cross-examine the witness.

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 (2011), the court ruled that a court may admit a dying person's statement into evidence if the person made the statement to assist police with an "ongoing emergency."

For example, suppose police come upon a person who is on the brink of death. Shortly before they die, they state, "Brad stabbed me." Because the person's statement is intended to help police solve an ongoing emergency, like an alleged killer on the loose, the statement is likely admissible. Such statements are known as testimonial statements.

A nontestimonial statement is likely inadmissible due to the confrontation clause. Rather than assisting police with an ongoing emergency, nontestimonial statements merely help the police investigate a past crime. For example, suppose police come upon a person who is on the brink of death. The person states, "Billy committed tax fraud two years ago." Because the statement does not help police solve an ongoing emergency, the statement is likely inadmissible at a criminal trial.

Notice and Demand Exception for Forensic Reports

In Melendez-Diaz v. Massachusetts (2009), the Supreme Court extended the Crawford rule to cover forensic analysis reports. Specifically, the court ruled that prosecutors cannot use a lab 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 their intent to use a report without additional testimony. No confrontation clause violation occurs if the defendant does not object to the prosecution's use of the report.

In 2011, the court further enhanced and clarified the rules for forensic analyses. There, the court determined that the person who performed the forensic test must testify at trial.

Therefore, generally, testimony from a different forensic analyst from the same lab does not satisfy the Sixth Amendment's requirements. However, testimony from a different analyst could constitute an acceptable substitute if the original analyst was unavailable to testify and the defense had a previous opportunity to cross-examine them.

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 Sixth Amendment to more recent Supreme Court rulings, it's essential to understand how the law works. An excellent way to learn this information is to contact a local criminal defense attorney who can review your case and become your trusted legal advocate in the courtroom.

An experienced attorney can provide you with legal advice regarding:

If you are facing criminal charges, do not delay in contacting a criminal defense attorney near you.

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