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.
For years the Court has struggled with the relationship between hearsay rules and the Confrontation Clause. In a series of decisions beginning in 1965, the Court seemed to equate the Confrontation Clause with the hearsay rule, positing that a major purpose of the clause was
to give the defendant charged with crime an opportunity to cross-examine the witnesses against him, unless one of the hearsay exceptions applies. 1 Thus, in Pointer v. Texas, 2 the complaining witness had testified at a preliminary hearing at which he was not cross-examined and the defendant was not represented by counsel, and by the time of trial, the witness had moved to another state and the prosecutor made no effort to obtain his return. Offering the preliminary hearing testimony violated the defendant’s right of confrontation. In Douglas v. Alabama, 3 the prosecution called as a witness the defendant’s alleged accomplice, and when the accomplice refused to testify, pleading his privilege against self-incrimination, the prosecutor read to him to
refresh his memory a confession in which he implicated the defendant. Because the defendant could not cross-examine the accomplice with regard to the truth of the confession, the Court held that the Confrontation Clause had been violated. In Bruton v. United States, 4 the use at a joint trial of a confession made by one of the defendants was held to violate the confrontation rights of the other defendant who was implicated by it because he could not cross-examine the codefendant. 5 The Court continues to view as
presumptively unreliable accomplices’ confessions that incriminate defendants. 6
Then, in 1970, the Court refused to equate the Confrontation Clause with hearsay rules.
While . . . hearsay rules and the Confrontation Clause are generally designed to protect similar values, it is quite a different thing to suggest that the overlap is complete and that the Confrontation Clause is nothing more or less than a codification of the rules of hearsay and their exceptions as they existed historically at common law. Our decisions have never established such a congruence; indeed, we have more than once found a violation of confrontation values even though the statements in issue were admitted under an arguably recognized hearsay exception. The converse is equally true: merely because evidence is admitted in violation of a long-established hearsay rule does not lead to the automatic conclusion that confrontation rights have been denied. 7 In holding admissible a statement made to police during custodial interrogation, the Court explained that
[T]he Confrontation Clause does not require excluding from evidence the prior statements of a witness who concedes making the statements, and who may be asked to defend or otherwise explain the inconsistency between his prior and his present version of the events in question, thus opening himself to full cross-examination at trial as to both stories. 8
The Court favored a hearsay exception over a cross-examination requirement in Dutton v. Evans, 9 upholding the use as substantive evidence at trial of a statement made by a witness whom the prosecution could have produced but did not. 10 Presentation of a statement by a witness who is under oath, in the presence of the jury, and subject to cross-examination by the defendant is only one way of complying with the Confrontation Clause, four Justices concluded. Thus, at least in the absence of prosecutorial misconduct or negligence and where the evidence is not
devastating, these Justices found that the Confrontation Clause could be satisfied if
the trier of fact [has] a satisfactory basis for evaluating the truth of the [hearsay] statement. The reliability of a statement was to be ascertained in each case by an inquiry into the likelihood that cross-examination of the declarant at trial could successfully call into question the declaration’s apparent meaning or the declarant’s sincerity, perception, or memory. 11