Amdt6.5.1.1 Right to Confront Adverse Witnesses: Early Doctrine

Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

The primary object of the [Confrontation Clause is] to prevent depositions of ex parte affidavits . . . being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.1 The right of confrontation is [o]ne of the fundamental guarantees of life and liberty . . . long deemed so essential for the due protection of life and liberty that it is guarded against legislative and judicial action by provisions in the Constitution of the United States and in the constitutions of most if not of all the States composing the Union.2 Before 1965, when the Court held the right to be protected against state abridgment, 3 it had little need to clarify the relationship between the right of confrontation and the hearsay rule, 4 because it could control the admission of hearsay through exercise of its supervisory powers over the inferior federal courts. 5

On the basis of the Confrontation Clause, the Court had concluded that evidence given at a preliminary hearing could not be used at the trial if the absence of the witness was attributable to the negligence of the prosecution, 6 but that if a witness’ absence had been procured by the defendant, testimony given at a previous trial on a different indictment could be used at the subsequent trial. 7 The Court had also recognized the admissibility of dying declarations 8 and of testimony given at a former trial by a witness since deceased. 9 The prosecution was not permitted to use a judgment of conviction against other defendants on charges of theft in order to prove that the property found in the possession of the defendant now on trial was stolen. 10 A prosecutor, however, may comment on a defendant’s presence at trial, and call attention to the defendant’s opportunity to tailor his or her testimony to comport with that of previous witnesses. 11

Footnotes

  1.  Jump to essay-1Mattox v. United States, 156 U.S. 237, 242-43 (1895).
  2.  Jump to essay-2Kirby v. United States, 174 U.S. 47, 55, 56 (1899). Cf. Pointer v. Texas, 380 U.S. 400, 404-05 (1965). The right may be waived but it must be a knowing, intelligent waiver uncoerced from defendant. Brookhart v. Janis, 384 U.S. 1 (1966).
  3.  Jump to essay-3Pointer v. Texas, 380 U.S. 400 (1965) (overruling West v. Louisiana, 194 U.S. 258 (1904)); see also Stein v. New York, 346 U.S. 156, 195-96 (1953).
  4.  Jump to essay-4Hearsay is the prior out-of-court statements of a person, offered affirmatively for the truth of the matters asserted, presented at trial either orally by another person or in writing. Hickory v. United States, 151 U.S. 303, 309 (1894); Southern Ry. v. Gray, 241 U.S. 333, 337 (1916); Bridges v. Wixon, 326 U.S. 135 (1945).
  5.  Jump to essay-5Thus, although it had concluded that the co-conspirator exception to the hearsay rule was consistent with the Confrontation Clause, Delaney v. United States, 263 U.S. 586, 590 (1924), the Court’s formulation of the exception and its limitations was pursuant to its supervisory powers. Lutwak v. United States, 344 U.S. 604 (1953); Krulewitch v. United States, 336 U.S. 440 (1949).
  6.  Jump to essay-6Motes v. United States, 178 U.S. 458 (1900).
  7.  Jump to essay-7Reynolds v. United States, 98 U.S. (8 Otto) 145 (1879).
  8.  Jump to essay-8Kirby v. United States, 174 U.S. 47, 61 (1899); Robertson v. Baldwin, 165 U.S. 275, 282 (1897).
  9.  Jump to essay-9Mattox v. United States, 156 U.S. 237, 240 (1895).
  10.  Jump to essay-10Kirby v. United States, 174 U.S. 47 (1899), and Dowdell v. United States, 221 U.S. 325 (1911), recognized the inapplicability of the clause to the admission of documentary evidence to establish collateral facts, admissible under the common law, to permit certification as an additional record to the appellate court of the events of the trial.
  11.  Jump to essay-11Portuondo v. Agard, 529 U.S. 61 (2000).