Confrontation, Right of (Update)

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The Supreme Court has explained that the accused's Sixth Amendment right "to be confronted with the witnesses against him" has the primary function of furthering the trial's truth-determining process. But recent cases reveal conflicts over the best way to ascertain truth and competing visions of a trial's shape. Cases involving children especially have posed the question whether a dramatic and adversarial trial, with the accusing witness and accused as protagonist and antagonist, tends to produce the most accurate results. They have also posed the question of the extent to which values other than truth-seeking—such as protecting a witness from the trauma of trial—can supervene the confrontation right.

Taking its cue from Shakespeare's Richard II—"Then call them to our presence; face to face and frowning brow to brow, ourselves will hear the accuser and the accused freely speak" (1.1.15–17)—the Court in coy v. iowa (1988) held that the core of the right, manifest in the Sixth Amendment's text, involves physical face-to-face confrontation between witness and accused. Keeping the dramatis personae together on the trial's stage contributes not only to honest testimony but to maintaining our dramatic sense of what a trial is: "There is something deep in human nature that regards face-to-face confrontation between accused and accuser as "essential to a fair trial." Accordingly, Coy held unconstitutional a statute allowing in all such cases a screen to obstruct a sexually abused minor witness's view of the accused.

maryland v. craig (1990) answered affirmatively the question Coy reserved: whether a court may employ such a device if it first makes an individualized finding that an important state interest justifies its use in a particular case. But Craig did not clarify whether protecting a witness from serious distress or trauma can justify a device that does not also aid truth-seeking by enabling a child, whom distress would otherwise render substantially unavailable, to testify. The device, upheld in Craig, altered the nature of the trial by mixing the media of stage and television: in the courtroom, the defendant, judge, and jury watched, via closed-circuit television, real-time pictures of the child testifying in another room in the presence of the prosecutor and defense counsel. In contrast to Coy, the Craig decision described face-to-face confrontation only as a preference and emphasized that the confrontation clause's interest in reliability can be furthered sufficiently by a witness's testifying under oath and being cross-examined while observed by the trier of fact. In addition, Kentucky v. Stincer (1987) determined that the accused may be excluded from a routine witness-competency hearing of a sexually abused minor, because his right to confrontation regarding the witness's substantive testimony remains intact.

Other opinions focus entirely on cross-examination as the core of the confrontation right. While emphasizing that a judge has wide latitude to impose reasonable limits on cross-examination to avoid harassment, prejudice, confusion, trauma, repetition, and the like, recent cases, such as Delaware v. Van Arsdall (1986) and Olden v. Kentucky (1988), hold that, save for harmless error, a trial judge cannot exclude all inquiry into traditionally relevant subject areas, such as bias and other credibility matters. For example, Davis v. Alaska (1974) holds that a court cannot restrict cross-examination about a witness's juvenile court record, despite a statute protecting the record's confidentiality. With respect to the adversarial manner of cross-examination, lower courts do not readily restrict the cross-examination of children to a gentle inquiry using age-appropriate language and concepts, despite claims that traditional cross-examination on counsel's terms is not conducive to a child's truth-telling.

The Court is divided on whether the cross-examination right is exclusively a procedural trial right that guarantees only an opportunity to cross-examine or whether it is also a right that can enhance effective cross-examination by affording pretrial disclosure, and discovery. The eye-witness identification rules established by united states v. wade (1967) exemplify this latter approach. The former is found in Pennsylvania v. Ritchie (1987), in which a trial court refused to give defense counsel access to a child welfare office's investigatory file of a sexual abuse case, pursuant to a statute establishing its confidentiality. Because defense counsel had the opportunity to examine the accusing daughter at trial, a plurality found no confrontation clause violation. The Court did require the trial judge to conduct a review of the file in camera to determine whether the accused's due process rights required disclosure. The view that the confrontation clause assures an opportunity to cross-examine but not effective cross-examination led the Court, in United States v. Owens (1988) and Delaware v. Fensterer (1985), to uphold the admission of a testifying witness's out-of-court statements, even though he had lost all memory concerning the statements other than the fact that he had previously made them.

Finally, the Supreme Court continues to address the admission of hearsay and of codefendant statements. Ohio v. Roberts (1980), involving the admission of the prior testimony of an unavailable witness, indicated that the confrontation clause imposes a strong preference for in-court statements, which requires the state to make a good-faith effort to produce the declarant in court, and a requirement that the admission of an out-of-court statement be based on indicia of reliability, established either by its coming "within a firmly rooted hearsay exception" or by a showing of "particularized guarantees of trustworthiness." But in Bourjaily v. United States (1987) and United States v. Inadi (1986), the Court interpreted the two Roberts requirements as applying primarily to the admission of prior testimony. Bourjaily limited the Roberts indicia of reliability requirement by admitting coconspirator statements under an agency theory without regard to their reliability. Inadi permitted the prosecutor to introduce out-of-court statements of a coconspirator without making much effort to produce him. It distinguished prior testimony in Roberts from these coconspirator statements, in that the latter, precisely because they were made during the conspiracy, may be more probative than a declarant's subsequent postconspiracy in-court statements. This view—that a trial can best achieve truth through the consideration of statements made in a natural setting rather than through the artifice of a dramatic and adversarial replaying at trial—finds support in some lower court decisions admitting children's out-of-court statements made near the time of their abuse or in the context of a trusted relationship. However, by reemphasizing the Roberts requirements, the Supreme Court, in Idaho v. Wright (1990), rejected the admission, under a residual hearsay exception, of a sexual abuse accusation made by an unavailable three-year-old in response to the allegedly suggestive questions of an examining pediatrician. With little consideration of the growing psychological evidence on the subject, the Court emphasized that to be admissible the out-of-court statement must have been made under circumstances evidencing such trustworthiness that, subsequently at trial, "adversarial testing would add little to its reliability." With respect to codefendant confessions, in Cruz v. New York (1987), Richardson v. Marsh (1987), Lee v. Illinois (1986), and Tennessee v. Street (1985), the Court reaffirmed (if only narrowly) and refined Bruton v. United States (1968) by prohibiting the limited admission against a nontestifying codefendant of that portion of his confession that directly implicates the defendant but is not admissible against him.

In noncriminal cases, the due process clause can afford some sort of confrontation right to enhance the truth-determining process. in re gault (1967) held that a minor who risks loss of liberty in a state juvenile institution enjoys a right of confrontation, including sworn testimony subject to cross-examination. Lower courts have similarly guaranteed such a right in civil commitment proceedings for those suffering from mental illness, even though these proceedings in practice are not particularly adversarial and rely heavily on out-of-court statements not strictly within traditional hearsay exceptions. The scope of confrontation rights in proceedings involving the custody of children, as in civil child abuse cases, is currently disputed in doctrine and in practice. The Supreme Court recognized the right to confront and cross-examine adverse witnesses in administrative hearings prior to the termination of welfare benefits in goldberg v. kelly (1970) and prior to a prisoner's transfer to a mental hospital in Vitek v. Jones (1980). But the Court has permitted decision making without confrontation, based on a written record or on hearing the affected individual's side of the story, in other cases, such as a prison disciplinary proceeding in Wolff v. McDonnell (1974) and a public employee predischarge review that precedes a fuller post-deprivation hearing in Cleveland Board of Education v. Loudermill (1985).

Robert D. Goldstein


Graham, Michael H. 1988 The Confrontation Clause, the Hearsay Rule, and Child Sexual Abuse Prosecutions: The State of the Relationship. Minnesota Law Review 72:523–601.

Haddad, James B. 1990 The Future of Confrontation Clause Developments: What Will Emerge When the Supreme Court Synthesizes the Diverse Lines of Confrontation Decisions. Journal of Criminal Law and Criminology 81:77–98.

Jonakait, Randolph N. 1988 Restoring the Confrontation Clause to the Sixth Amendment. UCLA Law Review 35:557–622.