Confrontation Clause

Question 1

What is the text of the Sixth Amendment?

Answer 1

“In all criminal prosecutions,
the accused shall enjoy the right …
to be confronted with
the witnesses against him.

Question 2

May the state insist on confronting witnesses against them?

Answer 2

No. The text says “the accused shall enjoy the right”

Question 3

What kind of witness statements fall under this rule? What characteristics are relevant?

Answer 3

Testimonial witnesses. Statements are “testimonial” when the declarant is aware that their statements might be used against someone in a criminal proceeding. This usually does not include statements related to an “on-going emergency” like a 911 call (but testimonial statements can still found in a 911 call).

Question 4

What if the state wants to offer lab results that implicate the defendant (e.g., toxicity results)?

Answer 4

The technician must take the stand. Because the lab results are “testimonial” (they were made with knowledge that they would be used against someone in a criminal proceeding), so the defendant has a right to confront the witness.

Question 5

Does the confrontation clause apply if the defendant caused the witness to be unavailable?

Answer 5

No, but the defendant must have intended to bring about that result. (S. Ct. case)

Question 6

What happens if, after the prosecution’s direct examination of a witness, the witness dies or refuses to be cross-examined?

Answer 6

All testimony from the direct must be excluded since defendant didn’t have an opportunity to “confront” (i.e. cross-examine) the witness.