Confrontation Clause

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The Confrontation Clause is in the Sixth Amendment to the U.S. Constitution:

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 U.S. Supreme Court has applied this to statements made by other witnesses to the police. Crawford v. Washington, 541 U.S. 36, 38 (2004).

Some have described the Confrontation Clause as simply a form of the rule against the admissibility of hearsay as evidence. But as U.S. Supreme Court Justice John Harlan II cautioned:[1]

Reliance on the Due Process Clauses would also have the virtue of subjecting rules of evidence to constitutional scrutiny in civil and criminal trials alike. It is exceedingly rare for the common law to make admissibility of evidence turn on whether the proceeding is civil or criminal in nature. See 1 Wigmore, supra, § 4, at 16-17. This feature of our jurisprudence is a further indication that the Confrontation Clause, which applies only to criminal prosecutions, was never intended as a constitutional standard for testing rules of evidence.

Due process requires confidential information that is potentially exculpatory to be submitted to the trial court for an in camera review. A federal court held that the Confrontation Clause does not give the defendant the right to access confidential records simply to aid in cross-examination: "[T]he Confrontation Clause only guarantees 'an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.'" Id. at 53 (quoting Delaware v. Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 88 L. Ed. 2d 15 (1985)).


  1. Dutton v. Evans, 400 U.S. 74, 97 n.4 (Harlan, J., concurring) (emphasis added).