CRS Annotated Constitution
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“The primary object of the constitutional provision in question was 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”145 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.”146 Before 1965, when the Court held the right to be protected against state abridgment,147 it had little need to clarify the relationship between the right of confrontation and the hearsay rule,148 inasmuch as its supervisory powers over the inferior federal courts permitted it to control the admission of hearsay on this basis.149 Thus, on the basis of the Confrontation Clause, it had concluded that evidence given at a preliminary hearing could not be used at the trial if the[p.1422]absence of the witness was attributable to the negligence of the prosecution,150 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.151 It had also recognized the admissibility of dying declarations152 and of testimony given at a former trial by a witness since deceased.153 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 defendant now on trial was stolen.154
Supplement: [P. 1422, add to text following n.154:]
A prosecutor, however, can 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.8
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.155 Thus, in Pointer v. Texas,156 the complaining witness had testified at a preliminary hearing at which he was not cross–examined and the defendant was not represented by counsel; 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 defendant’s right of confrontation. In Douglas v.[p.1423]Alabama,157 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 defendant. Because defendant could not cross–examine the accomplice with regard to the truth of the confession, the Court held the Confrontation Clause had been violated. In Bruton v. United States,158 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 not taking the stand.159 The Court continues to view as “presumptively unreliable accomplices’ confessions that incriminate defendants.”160[p.1424]
More recently, however, the Court has moved away from these cases. “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.”161
Further, the Court in California v. Green162 upheld the use at trial as substantive evidence of two prior statements made by a witness who at the trial claimed that he had been under the influence of LSD at the time of the occurrence of the events in question and that he could therefore neither deny nor affirm the truth of his prior statements. One of the earlier statements was sworn testimony given at a preliminary hearing at which the defendant was represented by counsel with the opportunity to cross–examine the witness; that statement was admissible because it had been subjected to cross–examination earlier, the Court held, and that was all that was required. The other statement had been made to policemen during custodial interrogation, had not been under oath, and, of course, had not been subject to cross–examination, but the Court deemed it admissible because the witness had been present at the trial and could have been cross–examined then. “[T]he Confrontation Clause does not require excluding from evidence the prior statements of a witness who c[p.]stories.”163 But in Dutton v. Evans,164 the Court upheld the use as substantive evidence at trial of a statement made by a witness whom the prosecution could have produced but did not. 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,” the Confrontation Clause is satisfied if the circumstances of presentation of out–of–court statements are such that “the trier of fact [has] a satisfactory basis for evaluating the truth of the [hearsay] statement,” and this is to be ascertained in each case by focusing on the reliability of the proffered hearsay statement, that is, 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, per165[p.1426]
In Ohio v. Roberts,166 the Court explained that it had construed the clause “in two separate ways to restrict the range of admissible hearsay.” First, there is a rule of “necessity,” under which in the usual case “the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant.” Second, “once a witness is shown to be unavailable . . . , the Clause countenances only hearsay marked with such trustworthiness that ‘there is no material departure from the reason of the general rule.”’167 That is, if the hearsay declarant is not present for cross–examination at trial, the “statement is admissible only if it bears adequate ‘indicia of reliability.’ Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.”168
Roberts was narrowed in United States v. Inadi,169 holding that the rule of “necessity” is confined to use of testimony from a prior judicial proceeding, and is inapplicable to co–conspirators’ out– of–court statements. The latter—at least those “made while the conspiracy is in progress”—have “independent evidentiary significance of [their] own”; hence in–court testimony is not a necessary or valid substitute.170 Similarly, evidence embraced within such firmly rooted exceptions to the hearsay rule as those for spontaneous declarations and statements made for medical treatment” is not barred from trial by the Confrontation Clause.171 Particularized guarantees of trustworthiness inherent in the circumstances under which a statement is made must be shown for admission of other hearsay evidence not covered by a “firmly rooted exception;” evidence tending to corroborate the truthfulness of a statement may not be relied upon as a bootstrap.172[p.1427]
Contrasting approaches to the Confrontation Clause were taken by the Court in two cases involving state efforts to protect child sex crime victims from trauma while testifying. In Coy v. Iowa,173 the Court held that the right of confrontation is violated by a procedure, authorized by statute, placing a one–way screen between complaining child witnesses and the defendant, thereby sparing the witnesses from viewing the defendant. This conclusion was reached even though the witnesses could be viewed by the defendant’s counsel and by the judge and jury, even though the right of cross–examination was in no way limited, and even though the state asserted a strong interest in protecting child sex–abuse victims from further trauma.174 The Court’s opinion by Justice Scalia declared that a defendant’s right during his trial to face–to–face confrontation with his accusers derives from “the irreducible literal meaning of the clause,” and traces “to the beginnings of Western legal culture.”175 Squarely rejecting the Wigmore view “that the only essential interest preserved by the right was cross–examination,176 the Court emphasized the importance of face– to–face confrontation in eliciting truthful testimony.
Coy’s interpretation of the Clause, though not its result, was rejected in Maryland v. Craig.177 In Craig the Court upheld Maryland’s use of one–way, closed circuit television to protect a child witness in a sex crime from viewing the defendant. As in Coy, procedural protections other than confrontation were afforded: the child witness must testify under oath, is subject to cross examination, and is viewed by the judge, jury, and defendant. The critical factual difference between the two cases was that Maryland required a case–specific finding that the child witness would be traumatized by presence of the defendant, while the Iowa procedures struck down in Coy rested on a statutory presumption of trauma. But the difference in approach is explained by the fact that Justice O’Connor’s views, expressed in a concurring opinion in Coy, became the opinion of the Court in Craig.178 Beginning with the propo[p.1428]sition that the Confrontation Clause does not, as evidenced by hearsay exceptions, grant an absolute right to face–to–face confrontation, the Court in Craig described the Clause as “reflect[ing] a preference for face–to–face confrontation.”179 This preference can be overcome “only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.”180 Relying on the traditional and “transcendent” state interest in protecting the welfare of children, on the significant number of state laws designed to protect child witnesses, and on “the growing body of academic literature documenting the psychological trauma suffered by child abuse victims,”181 the Court found a state interest sufficiently important to outweigh a defendant’s right to face–to–face confrontation. Reliability of the testimony was assured by the “rigorous adversarial testing [that] preserves the essence of effective confrontation.”182 All of this, of course, would have led to a different result in Coy as well, but Coy was distinguished with the caveat that “[t]he requisite finding of necessity must of course be a case–specific one;” Maryland’s required finding that a child witness would suffer “serious emotional distress” if not protected was clearly adequate for this purpose.183
In another case involving child sex crime victims, the Court held that there is no right of face–to–face confrontation at an in– chambers hearing to determine the competency of a child victim to testify, since the defendant’s attorney participated in the hearing, and since the procedures allowed “full and effective” opportunity to cross–examine the witness at trial and request reconsideration of the competency ruling.184 And there is no absolute right to confront witnesses with relevant evidence impeaching those witnesses; failure to comply with a rape shield law’s notice requirement can validly preclude introduction of evidence relating to a witness’s prior sexual history.185
Supplement: [P. 1423, add to n.158:]
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) .
Supplement: [P. 1423, add to n.160:]
Lilly v. Virginia, 527 U.S. 116 (1999) .
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