Sixth Amendment — Confrontation Clause

Amdt6.5.1 Early Confrontation Clause Cases

The Confrontation Clause of the Sixth Amendment guarantees a criminal defendant the right “to be confronted with the witnesses against him.” The Clause’s “primary object[ive] . . . was to prevent depositions or ex parte affidavits . . . being used against” the defendant, giving the defendant the opportunity of “testing the recollection and sifting the conscience of the witness.”¹ Although the Supreme Court has long recognized this Sixth Amendment right to confront witnesses in criminal proceedings as “[o]ne of the fundamental guaranties of life and liberty,”² until 1965, the Court construed the right as limited to federal court proceedings.³ As a result, in its early doctrine, the Court rejected Confrontation Clause challenges to state court proceedings.⁴

The Confrontation Clause’s text, which grants the accused a right to confront the “witnesses against” him, generally is addressed to individuals who give formal testimony or its functional equivalent in a criminal proceeding.⁵ The Court held that the purpose of the Sixth Amendment was “to continue and preserve” a common-law right of confrontation “having recognized exceptions.”⁶ For example, the Court in Kirby v. United States described the operation of the Clause as mandating that “a fact which can be primarily established only by witnesses” must allow the defendant to confront those witnesses “at the trial, upon whom he can look while being tried, whom he is entitled to cross-examine, and whose testimony he may impeach in every mode authorized by the established rules governing the trial or conduct of criminal cases.”⁷ Similarly, in 1911, the Court interpreted the Confrontation Clause as intended “to secure the accused the right to be tried, so far as facts provable by witnesses are concerned, by only such witnesses as meet him face to face at the trial, who give their testimony in his presence, and give to the accused an opportunity of cross-examination.”⁸

In a number of early cases, the Court examined the reach and limits of the Confrontation Clause in challenges to federal court proceedings. For example, in Delaney v. United States,⁹ the Court considered the relationship between the Confrontation Clause and the rule against hearsay evidence¹⁰ out-of-court statements offered at trial in support of the matter they assert.¹¹ The Delaney Court concluded that the co-conspirator exception to the hearsay ban-which permits the admission of the acts or statement of one conspirator against a codefendant if made “during and in furtherance of the conspiracy”¹²-was consistent with the Confrontation Clause and allowed for the admission of a dead co-conspirator’s out-of-court statement.¹³

The Court recognized a number of other exceptions to the Confrontation Clause in its early doctrine. For instance, the Court concluded that the right to confront witnesses does not bar the admission of dying declarations¹⁴-out-of-court statements by a declarant “made under a sense of impending death.”¹⁵ In addition, the Court held that an accused forfeits the right to confront witnesses who are “absent by his own wrongful procurement” and “which he has kept away.”¹⁶ However, according to the Court, if the witness was absent due “to the negligence of the prosecution,” then the Confrontation Clause prohibited the admission of “the deposition or statement of” that “absent witness.”¹⁷

Other early cases involved the extent to which the Confrontation Clause barred the use of information from one proceeding in a separate proceeding. For instance, in an 1899 opinion, the Court concluded that the Confrontation Clause bars the admission of the conviction of a defendant in one proceeding against a different defendant in a separate proceeding when used to establish material facts.¹⁸

Amdt6.5.2 Confrontation Clause Cases During the 1960s through 1990s

In 1965, the Supreme Court broke from its early doctrine limiting Confrontation Clause protections to federal court proceedings and held that the right to confrontation is “fundamental” and “made obligatory on the States by the Fourteenth Amendment.”¹ Alongside that pronouncement, and in the years immediately following, the Court’s opinions further discussed the relationship between the confrontation right and the bar on hearsay evidence.² The Court seemingly associated the two concepts, concluding that a key purpose of the right to confrontation is to give criminal defendants “an opportunity to cross-examine the witnesses against him,” absent an applicable hearsay exception.³ In Pointer v. Texas,⁴ the Court rejected the admission of testimony from a prior preliminary hearing on confrontation grounds, because no exception to the hearsay rule applied, and the testimony was taken in circumstances insufficient to secure “an adequate opportunity to cross-examine” the witness through counsel.⁵ The Court further emphasized the importance of cross examination in satisfying the confrontation right in Douglas v. Alabama,⁶ concluding that the Confrontation Clause barred the admission of the confession of an alleged accomplice who invoked his Fifth Amendment right to avoid self-incrimination, leaving the defendant unable to “cross-examine [the witness] as to the alleged confession.”⁷ Three years later, cross-examination was again integral to the Court’s Confrontation Clause analysis in Bruton v. United States.⁸ In Bruton, the Court concluded that the Confrontation Clause barred the admission of the confession of a non-testifying co-defendant in a joint jury trial, where that confession implicated another defendant.⁹ According to the Court, introduction of that confession added “substantial, perhaps even critical, weight to the Government’s case in a form not subject to cross-examination.”¹⁰

In 1970, the Court again reexamined the relationship between the Confrontation Clause and the hearsay rule, holding that they “are generally designed to protect similar values,” but that the “overlap is [not] complete” and that the Confrontation Clause is more “than a codification of the rules of hearsay and their exceptions as they existed historically at common law.”¹¹ According to the Court, the Confrontation Clause may be violated even when the hearsay rule is not and, conversely, “evidence . . . admitted in violation of a long-established hearsay rule does not lead to the automatic conclusion that confrontation rights have been denied.”¹² Thus, in California v. Green,¹³ the Court held that the admission of prior statements made by a witness while in custody and in a preliminary hearing did not violate a defendant’s confrontation rights, even though the statements would have been hearsay in some jurisdictions.¹⁴ The Court reasoned that the witness was available for “full cross-examination at trial,” including for questioning into inconsistencies between his prior statement and “his present version of the events in question.”¹⁵ Similarly, in Dutton v. Evans,¹⁶ a plurality of four Justices held that the admission of an out-of-court statement pursuant to Georgia’s coconspirator hearsay exception did not violate the Confrontation Clause, even though the same statement would have been inadmissible hearsay under the federal rules of evidence.¹⁷ The Court reasoned that the “limited contours” of the federal hearsay exception in conspiracy trials are not “required by the Sixth Amendment’s Confrontation Clause” but rather a product of the Court’s “rule-making power in the area of the federal law of evidence.”¹⁸

Then, in its 1980 opinion Ohio v. Roberts, the Supreme Court again revisited the “relationship between the Confrontation Clause and the hearsay rule with its many exceptions.”¹⁹ In Roberts, the Court explained that the Confrontation Clause “operates in two separate ways to restrict the range of admissible hearsay.”²⁰ First, “when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable.”²¹ Second, if unavailable, “his statement is admissible only if it bears adequate ‘indicia of reliability.’”²² Indicia of reliability, according to the Court, could “be inferred . . . in a case where the evidence falls within a firmly rooted hearsay exception.”²³ Otherwise, reliability would require “a showing of particularized guarantees of trustworthiness.”²⁴ The Court’s focus in Roberts on reliability or trustworthiness became the primary lens through which the Court examined Confrontation Clause challenges involving extrajudicial statements until 2004, when the Court again changed course.²⁵

Amdt6.5.3.1 Admissibility of Testimonial Statements

In the years following Ohio v. Roberts,¹ the Supreme Court applied, revisited, and narrowed the Confrontation Clause standard that Roberts had set forth,² which generally permitted the admission of out-of-court statements only if the declarant was unavailable and the statement was sufficiently reliable.³ In 2004 the Court in Crawford v. Washington⁴ overruled Roberts and introduced a new standard for determining whether an out-of-court statement implicates the Confrontation Clause.⁵

Under Crawford, the key to whether evidence implicates the Confrontation Clause is not its reliability, but rather whether it is testimonial.⁶ Pursuant to Crawford, non-testimonial evidence does not implicate the Confrontation Clause.⁷ In contrast, testimonial evidence may only be admitted consistently with the Confrontation Clause in limited circumstances.⁸ Testimonial evidence may be admitted if the declarant: is available at trial for cross examination,⁹ or is unavailable but the defendant previously had opportunity to cross-examine the declarant about the statement.¹⁰ The Court in Crawford also recognized the existence of two common law Confrontation Clause exceptions that historically permitted the admission of testimonial statements¹¹—but it did not expressly approve or disapprove of either.¹²

The Crawford Court expressly declined to provide a “comprehensive definition” of “testimonial.”¹³ However, drawing from a variety of sources, the Court offered several possible formulations of “core” testimonial statements, including “ex parte in-court testimony or its functional equivalent” such as “affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially.”¹⁴ As additional possible formulations of “testimonial,” the Court listed “extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,” and “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.”¹⁵ Regardless of the exact formulation of “testimonial” the Court in Crawford specified that at a minimum, “testimonial” includes police interrogations and “prior testimony at a preliminary hearing, before a grand jury, or at a former trial.”¹⁶

In subsequent opinions, the Court has further examined what it means for evidence to be “testimonial” for Confrontation Clause purposes-particularly in the context of forensic laboratory reports and analysis. For example, in Melendez-Diaz v. Massachusetts¹⁷ the Court held that the admission of forensic lab analysts’ affidavits—reporting that material seized from the defendant was cocaine-violated the Confrontation Clause because affidavits were testimonial and the “analysts were ‘witnesses’ for purposes of the Sixth Amendment.”¹⁸ In Bullcoming v. New Mexico¹⁹ the Court clarified that when the government seeks to introduce laboratory reports containing testimonial certifications “made for the purpose of proving a particular fact,” the “accused’s right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist.”²⁰ Testimony by a surrogate witness who is familiar with general laboratory procedures, but otherwise uninvolved in the relevant certification, is insufficient to satisfy a defendant’s constitutional right.²¹

In its 2012 opinion Williams v. Illinois,²² the Court again revisited the relationship between the Confrontation Clause and laboratory analysis.²³ In Williams, an expert witness testified at trial regarding conclusions she drew by comparing DNA profiles, including one from an outside-laboratory that she had not participated in creating and therefore lacked personal knowledge about.²⁴ In her testimony and on cross-examination, the expert witness identified the source material for that outside-laboratory’s DNA profile.²⁵ The defendant argued that by allowing the substance of a testimonial forensic laboratory report through the trial testimony of an expert witness (who took no part in the reported forensic analysis), the prosecution violated the Confrontation Clause.²⁶ A plurality of four Justices disagreed, and rejected the argument that because the expert was not involved in performing, observing, or certifying the creation of the outside-laboratory’s DNA profile, the testimony regarding the source material for that profile ran afoul of Melendez-Diaz and Bullcoming.²⁷ According to the plurality, the Confrontation Clause “has no application to out-of-court statements that are not offered to prove the truth of the matter asserted.”²⁸ The plurality concluded that the underlying DNA results were “[o]ut-of-court statements . . . related by the expert solely for the purpose of explaining” her underlying assumptions, rather than statements “offered for their truth.”²⁹ As a result, the testimony regarding the source material of the outside-laboratory’s DNA profile fell “outside the scope of the Confrontation Clause.”³⁰

Amdt6.5.3.2 Ongoing Emergencies and Confrontation Clause

Statements made to police during interrogation are nontestimonial—and therefore outside the scope of the Confrontation Clause—when made “under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.”¹ In contrast, “[t]hey are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.”² One relevant factor in determining whether a statement occurred during an ongoing emergency is whether the statements are made “about events as they [are] actually happening,” and necessary to resolve a “present emergency, rather than simply to learn . . . what had happened in the past.”³ In Davis v. Washington,⁴ the Court concluded that out of court statements made by the victim of domestic violence to a 911 operator were nontestimonial as they were “plainly a call for help against [a] bona fide physical threat” by someone “facing an ongoing emergency.”⁵ The statements’ lack of formality also influenced the Court in Davis, as the Court emphasized that the statements were “frantic” and “provided over the phone,” in an unsafe, turbulent environment.⁶ However, based on similar considerations, the Davis Court concluded that statements made to responding officers during a separate domestic violence incident were testimonial.⁷ The difference, according to the Court, was that the testimonial statements were made with “no emergency in progress” and “no immediate threat” to the defendant, and were instead “part of an investigation into possibly criminal past conduct.”⁸

In Michigan v. Bryant,⁹ the Court held that the ongoing emergency exception encompassed the statements of a mortally wounded man to police, identifying the eventual defendant as the person who shot him.¹⁰ According to the Court, to determine whether an interrogation fits within the ongoing emergency exception, a court should objectively evaluate the circumstances “and the statements and actions of the parties.”¹¹ In Bryant, factors considered by the Court in making this assessment included the dangerousness of the weapon involved (a gun), and the possibility of additional shootings—both of which weighed in favor of there being an ongoing emergency.¹² In addition, the Court emphasized the “informality of the situation and the interrogation,” noting the “fluid and somewhat confused” nature of the questioning, which indicated that the “interrogators’ primary purpose was simply to address what they perceived to be an ongoing emergency.”¹³

In Ohio v. Clark,¹⁴ the Court examined the contours of the ongoing emergency exception outside of the context of police interrogations.¹⁵ Clark involved statements made by a child abuse victim to teachers, in which he identified the defendant as his abuser.¹⁶ The Court held that the admission of these statements without opportunity for cross-examination did not violate the Sixth Amendment as “neither the child nor his teachers had the primary purpose of assisting in [the defendant’s] prosecution.”¹⁷ According to the Court, the “statements occurred in the context of an ongoing emergency involving suspected child abuse.”¹⁸ In addition, the Court noted that the statements were made by a child, and that “[s]tatements by very young children will rarely, if ever, implicate the Confrontation Clause.”¹⁹ Further, the Court seemingly gave weight to the fact that the statements were made to teachers as opposed to police, although the Court declined to “adopt a rule that statements to individuals who are not law enforcement officers are categorically outside the Sixth Amendment.”²⁰

Amdt6.5.3.3 Dying Declarations and Forfeiture by Wrongdoing

Conceptually, the ongoing emergency exception (discussed above) places qualifying statements outside the Confrontation Clause, because they are not testimonial.¹ With respect to testimonial statements, the Court has stated that the only exceptions to Confrontation Clause requirements are those “established at the time of the founding,”² and “acknowledged” two such exceptions.³ The first Confrontation Clause exception encompasses dying declarations—“declarations made by a speaker who was both on the brink of death and aware that he was dying.”⁴ The second exception involves statements subject to “forfeiture by wrongdoing.”⁵ It permits “the introduction of statements of a witness who was ‘detained’ or ‘kept away’ by the ‘means or procurement’ of the defendant.”⁶ The forfeiture by wrongdoing exception applies only to “deliberate witness tampering” where “the defendant engaged in conduct designed to prevent the witness from testifying.”⁷ In Giles v. California,⁸ the Court examined the limits of this exception, and rejected its applicability to statements made by a victim to police three weeks before she was killed by the defendant (who claimed self-defense at trial).⁹ The Court concluded that the defendant did not forfeit his right to confront the witness’s statements even though she was “unavailable to testify” as a result of her “murder for which [the defendant] was on trial,” absent evidence that the defendant “intended to prevent [her] from testifying.”¹⁰

Amdt6.5.3.4 Right to Confront Witnesses Face-to-Face

Although much of the Court’s Confrontation Clause doctrine has focused on the admissibility of extra-judicial evidence such as out-of-court statements or lab results,¹ in several opinions the Court has examined the extent to which the Sixth Amendment affords a right to confront witnesses in person or face-to-face. In one case, the Court considered whether the Confrontation Clause gave the defendant a right to be present for the competency hearing of two child witnesses.² The Court seemingly construed the issue not as one of the defendant’s right to confront witnesses face-to-face, but rather to obtain effective cross-examination.³ According to the Court, the Sixth Amendment did not require the defendant’s presence in the competency hearing, because “[a]fter the trial court determined that the two children were competent to testify, they appeared and testified in open court” where they were “subject to full and complete cross-examination.”⁴ The next year, in Coy v. Iowa,⁵ the Court emphasized that “the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact.”⁶ Therefore, the Court held that the Confrontation Clause barred the use of a “specifically designed” screen that blocked the defendant from the complaining witness’s view as it was “difficult to imagine a more obvious or damaging violation of the defendant’s right to a face-to-face encounter.”⁷ However, two years later, the Court held that the Confrontation Clause permitted the testimony, examination, and cross-examination of a child witness by “one-way closed circuit television” from a separate room.⁸ Although, the child witness could not see the defendant, the Court noted the “important state interest” in protecting the child witness and observed that the closed-circuit testimony “preserve[d] all of the other elements of the confrontation right” such as “contemporaneous cross-examination” and the ability of the “judge, jury, and defendant” to view and assess the “witness as he or she testifies.”⁹ In addition, the Court emphasized that the judge made “individualized findings” that testifying face-to-face would cause the child witness serious emotional distress.¹⁰

Amdt6.5.3.5 Confrontation of Witnesses Lacking Memory

In one vein of cases, the Court has examined the degree to which lack of memory on the part of a testifying witness implicates the Confrontation Clause.¹ For instance, in Delaware v. Fensterer,² the Court disagreed that a defendant’s confrontation rights had been violated when an expert witnesses testified but could not remember the basis of his theory, which the defendant argued deprived him of an adequate opportunity for cross-examination.³ The Court explained that in general, “the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.”⁴ The Court noted that the defendant had an opportunity to effectively cross-examine the expert witness, including into his lack of recollection.⁵ In addition, according to the Court, the Confrontation Clause “includes no guarantee that every witness called by the prosecution will refrain from giving testimony that is marred by forgetfulness, confusion, or evasion.”⁶ The Court reached a similar conclusion three years later when it rejected a Confrontation Clause challenge to testimony of a complaining witness concerning his prior identification of the defendant—the details of which he could not remember due to memory loss.⁷ Citing to Fensterer, the Court explained that “[i]t is sufficient that the defendant has the opportunity to bring out such matters as the witness’ bias, his lack of care and attentiveness, his poor eyesight, and even . . . the very fact that he has a bad memory.”⁸

Amdt6.5.3.6 Evidence Introduced by Defendant

The Court’s Sixth Amendment jurisprudence illustrates that the right to confront witnesses does not amount to a right to confront witnesses with all available evidence.¹ For instance, a defendant did not have a right to confront a rape victim with evidence of a prior sexual relationship where the defendant failed to comply with a state law conditioning admission of such evidence on notice and hearing requirements.² The Court concluded that “[t]he notice-and-hearing requirement serves legitimate state interests in protecting against surprise, harassment, and undue delay.”³

Amdt6.5.4 Right to Compulsory Process

The Sixth Amendment guarantees a criminal defendant the right “to have compulsory process for obtaining witnesses in his favor.”¹ Two early nineteenth century cases illustrate the initial conceptions of the Compulsory Process Clause. Although neither is a Supreme Court case, both are notable in that they feature the analyses of then-Supreme Court Justices sitting on lower federal courts. In the first case, Justice Samuel Chase stated in the 1800 case United States v. Cooper that the “constitution gives to every man, charged with an offence, the benefit, of compulsory process, to secure the attendance of his witnesses.”² In the second case, Chief Justice John Marshall “presided as trial judge” over the “treason and misdemeanor trials of Aaron Burr.”³ In an 1807 opinion subsequently described by the Supreme Court as the “first and most celebrated analysis” of compulsory process, Marshall “ruled that Burr’s compulsory process rights entitled him to serve a subpoena on President Jefferson, requesting the production of allegedly incriminating evidence.”⁴ In addition to these two cases, another early insight into the Compulsory Process Clause may be gleaned from an 1833 treatise that suggests an apparent purpose of the provision was to make inapplicable in federal trials the common-law rule that in cases of treason or felony the accused was not allowed to introduce witnesses in his defense.⁵

The Supreme Court has since characterized the Compulsory Process Clause as one of several constitutional provisions guaranteeing defendants “a meaningful opportunity to present a complete defense.”⁶ There is little Supreme Court precedent examining the contours of the Compulsory Process Clause,⁷ because the Court has generally analyzed issues involving a defendant’s right to “obtain[ ] witnesses in his favor”⁸ through a Due Process framework.⁹ For instance, in the 1987 case Pennsylvania v. Ritchie, the Court indicated that requests to compel the government to reveal the identity of witnesses or produce exculpatory evidence should be evaluated under due process rather than compulsory process analysis, adding that “compulsory process provides no greater protections in this area than due process.”¹⁰ Thus, compulsory process rights such as the right to testify are also secured by the Due Process Clause.¹¹

Despite the limited precedent, there are a few Supreme Court cases that offer insights into the Compulsory Process Clause.¹² In the 1967 case Washington v. Texas, the Court observed that the “right of an accused to have compulsory process for obtaining witnesses in his favor stands on no lesser footing than the other Sixth Amendment rights” and that the right amounts “in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense.”¹³ The Court in Washington further held that “[t]his right is a fundamental element of due process of law,” applicable to states by way of the Fourteenth Amendment, and the right is violated by a state law that provides that co-participants in the same crime could not testify for one another.¹⁴ As the Court explained, it is a violation of the Compulsory Process Clause if the state “arbitrarily denied [a defendant] the right to put on the stand a witness who was physically and mentally capable of testifying to events that he had personally observed, and whose testimony would have been relevant and material to the defense.”¹⁵ The Court has also held that under the Compulsory Process Clause is “the accused’s right . . . to testify himself, should he decide it is in his favor to do so.”¹⁶ The right to present witnesses is not absolute, however; a court may refuse to allow a defense witness to testify when the court finds that defendant’s counsel willfully failed to identify the witness in a pretrial discovery request and thereby attempted to gain a tactical advantage.¹⁷ In addition, a defendant “cannot establish a violation of his constitutional right to compulsory process merely by showing that deportation” of potential witnesses “deprived him of their testimony”; rather “[h]e must at least make some plausible showing of how their testimony would have been both material and favorable to his defense.”¹⁸