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Amdt6.5.1 Early Confrontation Clause Cases

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 Confrontation Clause of the Sixth Amendment guarantees a criminal defendant the right “to be confronted with the witnesses against him.” The Clause’s “primary object[ive] . . . was to prevent depositions or ex parte affidavits . . . being used against” the defendant, giving the defendant the opportunity of “testing the recollection and sifting the conscience of the witness.” 1 Although the Supreme Court has long recognized this Sixth Amendment right to confront witnesses in criminal proceedings as “[o]ne of the fundamental guaranties of life and liberty,” 2 until 1965, the Court construed the right as limited to federal court proceedings.3 As a result, in its early doctrine, the Court rejected Confrontation Clause challenges to state court proceedings.4

The Confrontation Clause’s text, which grants the accused a right to confront the “witnesses against” him, generally is addressed to individuals who give formal testimony or its functional equivalent in a criminal proceeding.5 The Court held that the purpose of the Sixth Amendment was “to continue and preserve” a common-law right of confrontation “having recognized exceptions.” 6 For example, the Court in Kirby v. United States described the operation of the Clause as mandating that “a fact which can be primarily established only by witnesses” must allow the defendant to confront those witnesses “at the trial, upon whom he can look while being tried, whom he is entitled to cross-examine, and whose testimony he may impeach in every mode authorized by the established rules governing the trial or conduct of criminal cases.” 7 Similarly, in 1911, the Court interpreted the Confrontation Clause as intended “to secure the accused the right to be tried, so far as facts provable by witnesses are concerned, by only such witnesses as meet him face to face at the trial, who give their testimony in his presence, and give to the accused an opportunity of cross-examination.” 8

In a number of early cases, the Court examined the reach and limits of the Confrontation Clause in challenges to federal court proceedings. For example, in Delaney v. United States,9 the Court considered the relationship between the Confrontation Clause and the rule against hearsay evidence10 out-of-court statements offered at trial in support of the matter they assert.11 The Delaney Court concluded that the co-conspirator exception to the hearsay ban-which permits the admission of the acts or statement of one conspirator against a codefendant if made “during and in furtherance of the conspiracy” 12 -was consistent with the Confrontation Clause and allowed for the admission of a dead co-conspirator’s out-of-court statement.13

The Court recognized a number of other exceptions to the Confrontation Clause in its early doctrine. For instance, the Court concluded that the right to confront witnesses does not bar the admission of dying declarations14 -out-of-court statements by a declarant “made under a sense of impending death.” 15 In addition, the Court held that an accused forfeits the right to confront witnesses who are “absent by his own wrongful procurement” and “which he has kept away.” 16 However, according to the Court, if the witness was absent due “to the negligence of the prosecution,” then the Confrontation Clause prohibited the admission of “the deposition or statement of” that “absent witness.” 17

Other early cases involved the extent to which the Confrontation Clause barred the use of information from one proceeding in a separate proceeding. For instance, in an 1899 opinion, the Court concluded that the Confrontation Clause bars the admission of the conviction of a defendant in one proceeding against a different defendant in a separate proceeding when used to establish material facts.18

Mattox v. United States, 156 U.S. 237, 242 (1895). back
Kirby v. United States, 174 U.S. 47, 55 (1899). back
See Stein v. People of State of New York, 346 U.S. 156, 195 (1953), overruled in part by Jackson v. Denno, 378 U.S. 368 (1964) (rejecting argument that right to confront witnesses is incorporated against the states via the Fourteenth Amendment); West v. State of Louisiana, 194 U.S. 258, 261–62 (1904), overruled in part by Pointer v. Texas, 380 U.S. 400 (1965) ( “As to the Federal Constitution, it will be observed that there is no specific provision therein which makes it necessary in a state court that the defendant should be confronted with the witnesses against him in criminal trials. The 6th Amendment does not apply to proceedings in state courts.” ). In 1965, the Supreme Court overturned this rule and held that the Confrontation Clause also applies in the context of state criminal proceedings (as discussed later). Pointer, 380 U.S. at 403. back
E.g., Stein, 346 U.S. at 195; West, 194 U.S. at 261–62. back
See, e.g., Coy v. Iowa, 487 U.S. 1012, 1016 (1988) ( “We have never doubted . . . that the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact.” ). back
Salinger v. United States, 272 U.S. 542, 548 (1926). back
Kirby v. United States, 174 U.S. 47, 55 (1899). back
Dowdell v. United States, 221 U.S. 325, 330 (1911) back
263 U.S. 586 (1924). back
Id. at 590. In its early doctrine, the Court sometimes examined the admissibility of out of court statements without expressly deciding whether they amounted to “hearsay.” S. Ry. v. Gray, 241 U.S. 333, 337 (1916) (evaluating admissibility of prior contradictory statements); Hickory v. United States, 151 U.S. 303, 309 (1894) (similar). back
See Krulewitch v. United States, 336 U.S. 440, 442–43 (1949) (describing as hearsay “an unsworn, out-of-court declaration of petitioner’s guilt” ); Bridges v. Wixon, 326 U.S. 135, 153–54 (1945) (holding that out-of-court statements offered as substantive evidence were hearsay and therefore inadmissible); accord Hearsay, Black’s Law Dictionary (11th ed. 2019) ( “In federal law, a statement (either a verbal assertion or nonverbal assertive conduct), other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” ). back
Coconspirators Exception, Black’s Law Dictionary (11th ed. 2019). back
Delaney, 263 U.S. at 590. In subsequent cases, the Court further outlined the co-conspirator exception. See Lutwak v. United States, 344 U.S. 604, 617–18 (1953) (concluding that co-conspirator hearsay exception does not apply to statements made after conspiracy concludes); Krulewitch, 336 U.S. at 442–43 (determining that “hearsay declaration attributed to the alleged co-conspirator was not admissible on the theory that it was made in furtherance of the alleged criminal transportation undertaking” where conspiracy had ended when statement was made). These subsequent cases generally arose not as Confrontation Clause questions, but rather evidentiary determinations regarding hearsay. See Lutwak v. United States, 344 U.S. at 617–18; Krulewitch, 336 U.S. at 442–43; see also Dutton v. Evans, 400 U.S. 74, 82 (1970) (plurality opinion) (explaining how the federal hearsay exception for coconspirator statements derived from the Court’s “exercise of its rule-making power in the area of the federal law of evidence” ). back
Kirby v. United States, 174 U.S. 47, 61 (1899); Mattox v. United States, 156 U.S. 237, 243–44 (1895); see also Snyder v. Com. of Mass., 291 U.S. 97, 107 (1934) ( “[T]he privilege of confrontation [has not] at any time been without recognized exceptions, as, for instance, dying declarations.” ); Robertson v. Baldwin, 165 U.S. 275, 282 (1897) ( “[T]he provision that an accused person shall be confronted with the witnesses against him [does not] prevent the admission of dying declarations, or the depositions of witnesses who have died since the former trial.” ). back
Mattox v. United States, 146 U.S. 140, 151 (1892). back
Reynolds v. United States, 98 U.S. 145, 158 (1878). Elsewhere, the Court noted that the right to confrontation does not prohibit the admission of “the notes of testimony of [a] deceased witness,” at least where “the accused has had the right of cross-examination in a former trial.” Dowdell v. United States, 221 U.S. 325, 330 (1911). According to the Court, “[t]o say that a criminal, after having once been convicted by the testimony of a certain witness, should go scot free simply because death has closed the mouth of that witness, would be carrying his constitutional protection to an unwarrantable extent.” Mattox, 156 U.S. at 243. back
Motes v. United States, 178 U.S. 458, 474 (1900). back
Kirby, 174 U.S. at 55. However, early Confrontation Clause doctrine suggested that the admission of information from one proceeding in a separate proceeding will not always violate the right to confront witnesses. See Dowdell, 221 U.S. at 330–31 (considering the right to confront witnesses under the Constitution of the Philippines and concluding that an appellate court did not infringe on that right by requiring lower courts to certify “certain facts regarding the course” of the underlying trial when that certification is not testimony concerning the defendant’s culpability). back