Amdt6.5.1.2 Right to Confront Adverse Witnesses: Doctrine from 1960s to 1990s

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.

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 crucial or 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


  1.  Jump to essay-1 Pointer v. Texas, 380 U.S. 400, 406–07 (1965); Douglas v. Alabama, 380 U.S. 415, 418 (1965). The right to confrontation is basically a trial right. It includes both the opportunity to cross-examine and the occasion for the jury to weigh the demeanor of the witness. Barber v. Page, 390 U.S. 719, 725 (1968). Unjustified limitation of the defendant’s right to cross-examine witnesses presented against him at trial may constitute a confrontation clause violation, Smith v. Illinois, 390 U.S. 129 (1968), or a denial of due process, Alford v. United States, 282 U.S. 687 (1931); and In re Oliver, 333 U.S. 257 (1948).
  2.  Jump to essay-2 380 U.S. 400 (1965). Justices Harlan and Stewart concurred on due process grounds, rejecting the incorporation holding. Id. at 408, 409. See also Barber v. Page, 390 U.S. 719 (1968), in which the Court refused to permit the state to use the preliminary hearing testimony of a witness in a federal prison in another state at the time of trial. The Court acknowledged the hearsay exception permitting the use of such evidence when a witness was unavailable but refused to find him unavailable when the state had made no effort to procure him; and Mancusi v. Stubbs, 408 U.S. 204 (1972) , in which the Court permitted the state to assume the unavailability of a witness then living in Sweden, and to use the transcript of the witness’ testimony at a former trial.
  3.  Jump to essay-3 380 U.S. 415 (1965). See also Smith v. Illinois, 390 U.S. 129 (1968) (Confrontation Clause was violated by allowing an informer as to identify himself by alias and to conceal his true name and address because the defense could not effectively cross-examine); Davis v. Alaska, 415 U.S. 308 (1974) (state law prohibiting disclosure of the identity of juvenile offenders could not be applied to preclude cross-examination of a witness about his juvenile record when the object was to allege possible bias on the part of the witness). Cf. Chambers v. Mississippi, 410 U.S. 284 (1973); United States v. Nobles, 422 U.S. 233, 240–41 (1975).
  4.  Jump to essay-4 391 U.S. 123 (1968). The Court in this case equated confrontation with the hearsay rule, first emphasizing that the hearsay statement inculpating petitioner was clearly inadmissible against him under traditional rules of evidence, id. at 128 n.3, and then observing that [t]he reason for excluding this evidence as an evidentiary matter also requires its exclusion as a constitutional matter. Id. at 136 n.12 (emphasis by Court). Bruton was applied retroactively in a state case in Roberts v. Russell, 392 U.S. 293 (1968). Where, however, the codefendant takes the stand in his own defense, denies making the alleged out-of-court statement implicating defendant, and proceeds to testify favorably to the defendant concerning the underlying facts, the defendant has not been denied his right of confrontation under Bruton . Nelson v. O’Neil, 402 U.S. 622 (1971). In two cases, violations of the rule in Bruton have been held to be harmless error in the light of the overwhelming amount of legally admitted evidence supporting conviction. Harrington v. California, 395 U.S. 250 (1969); Schneble v. Florida, 405 U.S. 427 (1972). Bruton was held inapplicable, however, when the nontestifying codefendant’s confession was redacted to omit any reference to the defendant, and was circumstantially incriminating only as the result of other evidence properly introduced. Richardson v. Marsh, 481 U.S. 200 (1987). Bruton was held applicable, however, where a blank space or the word deleted is substituted for the defendant’s name in a co-defendant’s confession, making such confession incriminating of the defendant on its face. Gray v. Maryland, 523 U.S. 185 (1998).
  5.  Jump to essay-5In Parker v. Randolph, 442 U.S. 62 (1979), the Court was evenly divided on the question whether interlocking confessions may be admitted without violating the clause. Four Justices held that admission of such confessions is proper, even though neither defendant testifies, if the judge gives the jury a limiting instruction. Four Justices held that a harmless error analysis should be applied, although they then divided over its meaning in this case. The former approach was rejected in favor of the latter in Cruz v. New York, 481 U.S. 186 (1987). The appropriate focus is on reliability, the Court indicated, and the defendant’s confession may be considered at trial in assessing whether his codefendant’s statements are supported by sufficient ‘indicia of reliability’ to be directly admissible against him (assuming the ‘unavailability' of the codefendant) despite the lack of opportunity for cross-examination. 481 U.S. at 193–94.
  6.  Jump to essay-6 Lee v. Illinois, 476 U.S. 530, 541 (1986); Lilly v. Virginia, 527 U.S. 116, 132 (1999).
  7.  Jump to essay-7 California v. Green, 399 U.S. 149, 155–56 (1970) (citations omitted) (holding statement admissible because the witness was present at trial and could have been cross-examined then). See also Dutton v. Evans, 400 U.S. 74, 80–86 (1970) (plurality opinion by Justice Stewart). Compare id. at 94–95 (Justice Harlan concurring), with id. at 105 n.7 (Justice Marshall dissenting).
  8.  Jump to essay-8 California v. Green, 399 U.S. at 164. Justice Brennan dissented. Id. at 189. See also Nelson v. O’Neil, 402 U.S. 622 (1971). 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. To the contrary, the Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose these infirmities through cross-examination. Delaware v. Fensterer, 474 U.S. 15, 21–22 (1985) (per curiam) (expert witness testified as to conclusion, but could not remember basis for conclusion). See also United States v. Owens, 484 U.S. 554 (1988) (testimony as to a previous, out-of-court identification statement is not barred by witness’ inability, due to memory loss, to explain the basis for his identification).
  9.  Jump to essay-9 400 U.S. 74 (1970).
  10.  Jump to essay-10The statement was made by an alleged co-conspirator of the defendant and was admissible under the co-conspirator exception to the hearsay rule.
  11.  Jump to essay-11 400 U.S. at 86–89. The quoted phrase is at 89, (quoting California v. Green, 399 U.S. 149, 161 (1970)). Justice Harlan concurred to carry the case, on the view that (1) the Confrontation Clause requires only that any testimony actually given at trial must be subject to cross-examination, but (2) in the absence of countervailing circumstances introduction of prior recorded testimony—trial by affidavit—would violate the clause. Id. at 93, 95, 97. Justices Marshall, Black, Douglas, and Brennan dissented, id. at 100, arguing for adoption of a rule that: The incriminatory extrajudicial statement of an alleged accomplice is so inherently prejudicial that it cannot be introduced unless there is an opportunity to cross-examine the declarant, whether or not his statement falls within a genuine exception to the hearsay rule. Id. at 110–11. The Clause protects defendants against use of substantive evidence against them, but does not bar rebuttal of the defendant’s own testimony. Tennessee v. Street, 471 U.S. 409 (1985) (use of accomplice’s confession not to establish facts as to defendant’s participation in the crime, but instead to support officer’s rebuttal of defendant’s testimony as to circumstances of defendant’s confession; presence of officer assured right of cross-examination).