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The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that "in all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him."

The Confrontation Clause has its roots in both English common law, protecting the right of cross-examination, and Roman law, which guaranteed persons accused of a crime the right to look their accusers in the eye. According to Acts of the Apostles 25:16, the Roman governor Porcius Festus, discussing the proper treatment of his prisoner Paul, stated: "It is not the manner of the Romans to deliver any man up to die before the accused has met his accusers face-to-face, and has been given a chance to defend himself against the charges."

Many decisions of the Supreme Court of the United States have affirmed the right of the accused under the Confrontation Clause to have a face-to-face confrontation with the accuser, and an opportunity to cross-examine the accuser. In the 2004 decision Crawford v. Washington, the Supreme Court emphasized that the right to confront one's accusers could not be taken away in cases where judges believe that testimonial hearsay evidence is reliable, because such hearsay evidence had not had its reliability tested through the procedural crucible of cross-examination.^[1].

In Crawford, the Court held that testimonial statements by witnesses who do not appear at trial may not be admitted unless the witness is unavailable and there has been a prior opportunity for cross examination. Crawford limits the application of the confrontation clause to hearsay statements. Hearsay statements are out-of-court assertions offered as proof for the truth of the matters asserted. The central issue is whether the hearsay evidence is testimonial. If the out-of-court statement is testimonial, the prosecution cannot use it as substantive evidence unless the declarant is unavailable and the defendant has had a prior opportunity for cross-examination. If the statement is non-testimonial, the Confrontation Clause simply does not apply. The Supreme Court did not define "testimonial." The Court did provide examples of the type of statements that were testimonial -

• Ex parte in-court testimony or its functional equivalent - formalized testimonial materials such as affidavits, depositions or prior testimony.
• Statement that are the product of an official inquiry - such as police interrogation.
• Statements that are "a solemn declaration or affirmation made for the purpose of establishing or proving some fact." [See United States v. Hinton, 423 F.3d 355, 363 (3d Cir. 2005)]
• Statements made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.

In Davis v. Washington, 126 S. Ct. 2266 (2006), the court clarified the application of the Crawford rule in the context of police interrogation. Under Davis, if the primary purpose in making the statement is to "establish or prove past events potentially relevant to later criminal prosecution" the statement is testimonial. On the other hand if the primary purpose of the police questioning was to deal with a "present or imminent risk of harm to an individual or the public," then the statement is non-testimonial and the confrontation clause does not apply.

The fact that the Confrontation Clause does not apply does not mean that the statement is automatically admissible. The statement still has to be admissible under the particular jurisdiction's rules of evidence - which usually means that the statement must meet the requirements of an exception to the hearsay rule.

The states are free to interpret similar clauses in state constitutions more strictly than the Supreme Court's interpretation of the federal Confrontation Clause.

The Due Process Clauses of the Fifth and Fourteenth Amendments also requires confrontation as an element of due process.

References

1. ^ Scalia, J.. "Crawford V. Washington". Law.cornell.edu. http://www.law.cornell.edu/supct/html/02-9410.ZO.html. Retrieved 2008-09-06. 

Pollitt, The Right of Confrontation: Its History and Modern Dress, 8 J. Pub. L. 381, 384-387 (1959).

See also

• Sixth Amendment to the United States Constitution
• Melendez-Diaz v. Massachusetts
• Testimony
• Cross-examination