‘Face to Face’: Rediscovering the Right to Confront Prosecution Witnesses
| Author | Richard D. Friedman |
| Date | 01 January 2004 |
| DOI | 10.1350/ijep.8.1.1.36509 |
| Published date | 01 January 2004 |
| Subject Matter | Article |
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF 1
REDISCOVERING THE RIGHT TO CONFRONT PROSECUTION WITNESSES
‘Face to face’:
Rediscovering the right to
confront prosecution
witnesses
By Richard D. Friedman*
Ralph W. Aigler Professor of Law, University of Michigan Law School
Abstract. The Sixth Amendment to the United States Constitution protects the
right of an accused ‘to confront the witnesses against him’. The United States
Supreme Court has treated this Confrontation Clause as a broad but rather
easily rebuttable rule against using hearsay on behalf of a criminal prosecution;
with respect to most hearsay, the exclusionary rule is overcome if the court is
persuaded that the statement is sufficiently reliable, and the court can reach
that conclusion if the statement fits within a ‘firmly rooted’ hearsay exception.
This article argues that this framework should be abandoned. The clause should
not be regarded as a constitutionalisation of the rule against hearsay. Rather,
it reflects a principle of long standing in common law systems, and even in
some others, that a statement that is testimonial in nature may not be
introduced against a criminal defendant unless he has had an opportunity to
confront and examine the witness who made the statement. Recognition of
that principle, which may be achieved in the pending case of Crawford v
Washington, is of interest not only in the United States, but to all adjudicative
systems.
Station-house testimony and the confrontation right
For several centuries, prosecution witnesses in common-law criminal cases
have given their testimony under oath, face to face with the accused,
subject to cross-examination by him, and, if feasible, at trial. In recent
decades, however, some American courts have tolerated prosecutors’ use of
testimony given in a different way—by making a statement to the police in the
station-house.
* Ann Arbor, Michigan 48109; rdfrdman@umich.edu; (734) 647–1078. Many thanks to those who
joined me in the brief on which this article is based, and especially to David Moran.
(2004) 8 E&P 1–30
2 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
REDISCOVERING THE RIGHT TO CONFRONT PROSECUTION WITNESSES
Here is the pattern of station-house testimony: an incident occurs that suggests
that a crime has been committed involving at least peripheral participation by
two or more people. The police take the confederates into custody. One of them
makes a statement to the police that points the finger at, or otherwise tends to
incriminate, another of them. That second confederate is tried for the crime, but
at trial the person who made the statement is unavailable to be a witness. The
prosecution therefore offers the statement made to the police shortly after the
crime. The accused objects, claiming that introducing the statement would violate
his right to confront the witnesses against him, which is guaranteed by the
Confrontation Clause of the Sixth Amendment to the United States Constitution.
The statement is nevertheless admitted, and the defendant is convicted.
Twice in recent decades, in Lee v Illinois1 and Lilly v Virginia,2 the Supreme Court of
the United States has held that station-house testimony should not have been
admitted against a criminal defendant. But in neither case did the court foreclose
future use of this type of evidence, and some courts have continued to admit it.
The principal reason for this continuing state of affairs, in my view, is that the
court uses an unsatisfactory framework to analyse confrontation cases. That
framework, tracing to the court’s decision in Ohio v Roberts,3 makes the
confrontation right presumptively applicable to any hearsay statement offered
against a criminal defendant, but makes the presumption easily defeasible. The
primary question under the Roberts framework, as the court has come to apply it,
is whether the statement is deemed reliable, or trustworthy. Trustworthiness can
be inferred, according to this doctrine, when the statement falls within a ‘firmly
rooted’ hearsay exception, but when—as in Lee and Lilly—the court holds that no
such exception applies, the trial court must assess the particular statement for
‘individualized guarantees of trustworthiness’. Not surprisingly, in some cases
trial courts find that even statements made in the station-house bear such
guarantees.
I contend that this framework misses a great and noble principle that underlies
the Confrontation Clause—that the testimony of a witness may not be used against
an accused unless it was given under the conditions prescribed for testimony,
among which are that it be under oath or affirmation, that it be given in the
presence of the accused, and that it be subject to cross-examination.
Implementation of the principle requires recognition that a statement may be
testimonial in nature even though it was not made under the conditions
prescribed for testimony. Given this recognition, resolution of cases of station-
1 476 US 530 (1986).
2 527 US 116 (1999).
3 448 US 56 (1980).
To continue reading
Request your trial