The Confrontation Clause

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

—John F. Bash, III

Introduction

Few clauses of the Constitution better illustrate the ascendency of originalism in the jurisprudence of the modern Supreme Court than the Confrontation Clause. The seminal decision of Crawford v. Washington (2004) overruled precedent that had reduced the clause to little more than a judicial balancing test.¹ Instead, based on the text and history of the clause, Crawford restored its original function as a strict procedural limitation on the use of out-of-court statements in criminal trials.

History Before 1789

The right of a criminal defendant to confront an accuser has antecedents in ancient times. The Book of Deuteronomy states that “[i]f a false witness rise up against any man to testify against him that which is wrong; then both the men, between whom the controversy is, shall stand before the Lord, before the priests and the judges, which shall be in those days; and the judges shall make diligent inquisition.”² The Roman Governor Porcius Festus, who held the apostle Paul in custody, stated in the Acts of the Apostles that “[i]t is not the manner of the Romans to deliver any man up to die, before that he which is accused have the accusers face-to-face, and have license to answer for himself concerning the crime laid against him.”³

This ancient practice continued to the English common law. The accused were generally guaranteed a right to cross-examine, or confront, their accusers in open court.⁴ In the continental civil-law system, judges were empowered to examine witnesses privately.⁵ However, in the mid-sixteenth century, Parliament enacted two statutes that authorized judges to examine witnesses when the accused was not present.⁶ The judges could then submit the results of the ex parte examinations to courts. Over time, the records of such examinations came to be used as evidence in criminal trials. Perhaps the most infamous case was the 1603 treason trial of Sir Walter Raleigh.⁷ In that case, statements were taken from Raleigh’s alleged accomplices. That out-of-court testimony was read to the jury, but Raleigh was barred from cross-examining the witnesses in open court. This controversial decision came to be viewed as unjust.

English law gradually developed greater protections for the right to confrontation. Courts would generally admit out-of-court testimony only where the witness was unavailable and the defendant had been afforded a prior opportunity for cross-examination.⁸ Nevertheless, that guarantee was not always honored in the American colonies. For example, under the infamous Stamp Act of 1765, admiralty courts would hear cases for violating the revenue law.⁹ These courts lacked a jury and followed the civil-law system of ex parte judicial examination.¹⁰

With those abuses fresh in the minds of Americans, new state bills of rights drafted between 1776 and 1780 codified the right of criminal defendants to confront their accusers. The 1780 Massachusetts Declaration of Rights, for example, stated that “every subject shall have a right . . . to meet the witnesses against him, face to face.”¹¹

Adoption of the Confrontation Clause

During the Constitutional Convention, there was no meaningful discussion of the confrontation right, which also received little attention during the ratification debates. However, at least one Anti-Federalist objected to the lack of any confrontation right in the Constitution. Federal Farmer wrote that “[n]othing can be more essential than the cross examining [of] witnesses, and generally before the triers of the facts in question.”¹² During the First Congress, the confrontation right was ultimately incorporated into what became the Sixth Amendment. No evidence has emerged about the drafters’ intentions or understandings with respect to that clause.

Early Precedent

In the early Republic, a number of state supreme courts interpreted state analogues to the Confrontation Clause. These cases ruled that out-of-court testimony was inadmissible in a criminal trial unless the defendant had been afforded a prior opportunity to examine the witness.¹³ Such decisions provide some evidence about the original understanding of the confrontation right.

Another relevant precedent came during the 1807 treason trial of Aaron Burr. Chief Justice John Marshall, who presided over the trial, excluded out-of-court statements by one of Burr’s alleged co-conspirators.¹⁴ Nearly 200 years later, the majority and the dissent in Crawford sparred over whether the case shed any light on the Confrontation Clause. Justice Antonin Scalia maintained that the opinion did not meaningfully address the clause, which it mentioned only once in passing, and Chief Justice William Rehnquist read the opinion to have affirmed that courts could recognize new exceptions to the confrontation right.¹⁵

The first Supreme Court decision construing the Confrontation Clause was Mattox v. United States (1895).¹⁶ The Court upheld admission of the testimony of a deceased witness from a prior trial. Critically, the decision relied on the fact that the defendant had been able to cross-examine the witness during the first proceeding. However, the Court would later deviate from that rule.

Modern Precedent

Ohio v. Roberts (1980) was a significant case concerning the Confrontation Clause.¹⁷ The Court held that out-of-court statements by unavailable witnesses were admissible against a criminal defendant as long as they bore “adequate indicia of reliability.” In other words, the court would admit out-of-court testimony if it was reliable enough—even though the defendant could not confront and cross-examine the witness. This decision was in no way grounded in the text or history of the Sixth Amendment.

The Roberts rule would be overruled in Crawford v. Washington (2004). Justice Scalia’s majority opinion distilled from this history a rule: The Confrontation Clause bars “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had a prior opportunity for cross examination.”¹⁸ This rule was consistent with the reaction to the trial of Sir Walter Raleigh and with the meaning of confrontation in contemporaneous dictionaries.¹⁹ Scalia acknowledged that “the Clause’s ultimate goal is to ensure reliability of evidence” but explained that the clause “commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.”²⁰ Scalia quipped that “[d]ispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty.”²¹

In the wake of Crawford, courts have faced three recurring sets of problems in construing and applying the Confrontation Clause. First, the Crawford rule applies only to an out-of-court statement that is “testimonial.” Crawford acknowledged, for example, that out-of-court statements contained in business records and official records are not testimonial.

In Davis v. Washington (2006), Justice Scalia concluded that “[s]tatements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.”²² They are testimonial when “the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.”²³ These latter statements could be admitted only if the witness was subject to cross-examination in court.

Justice Clarence Thomas dissented. The two great originalists disagreed about the historical abuses that the Confrontation Clause was designed to prevent. Justice Thomas would have limited “testimonial” statements to those made with “some degree of solemnity,” such as statements “contained in formalized testimonial materials” like “affidavits, depositions, prior testimony, or confessions.”²⁴ Statements made during “informal police questioning” were nontestimonial and could be admitted in court without cross-examination.²⁵ The Court has also decided a series of cases about whether forensic lab reports are considered testimonial.²⁶

Second, Crawford recognized or suggested exceptions to the rule. For example, Crawford indicated in a footnote that courts may be permitted to admit a person’s dying declarations—a circumstance in which the witness cannot be confronted.²⁷ Crawford also permitted the admission of statements where the defendant is responsible for a witness’s unavailability.²⁸ Here, the defendant forfeited the right by his own wrongdoing, but Giles v. California (2008) held that the forfeiture exception does not apply when the defendant killed the victim for some reason other than preventing her testimony.²⁹

Third, there is the question of how Crawford applies to videoconferencing tools. Is the confrontation right satisfied when a witness testifies at a criminal trial over camera, or must the witness appear in person, face-to-face with the defendant and the jury? Coy v. Iowa (1988) stated that the Court had “never doubted” that the confrontation right requires in-person, face-to-face confrontation.³⁰ Two years later, however, Maryland v. Craig (1990) reversed course. (Justice Scalia wrote the majority opinion in Coy but dissented in Craig.) Craig upheld a procedure whereby a six-year-old victim of child abuse had been examined by the government and cross-examined by defense counsel outside of the courtroom. The examination was visible to the defendant and the jurors via one-way closed-circuit television, but the victim could not view the defendant. Craig deemed it sufficient that the procedure was “necessary to protect a child witness from trauma.”³¹ The Court found that every element of the confrontation right was satisfied other than forcing the witness to look at the accused: There was testimony under oath, the opportunity for cross-examination, and the ability of the judge, jury, and defendant to observe the demeanor of the witness.

Open Questions

• Maryland v. Craig relied on a purpose-based approach to the Confrontation Clause. Was this holding undermined by Crawford v. Washington’s more formalist interpretation of the clause? During the COVID-19 pandemic, lower courts permitted witnesses to testify by two-way videoconferencing applications.³² Were these decisions consistent with Crawford and the original meaning of the Confrontation Clause?
• The Supreme Court denied review in Franklin v. New York (2024), a Confrontation Clause case.³³ In a statement, Justice Samuel Alito wrote that the Court should “reconsider” Crawford in an “appropriate case.”³⁴ He observed that “[h]istorical research now calls into question Crawford’s understanding of the relevant common-law rules at the time of the adoption of the Sixth Amendment, and whatever else may be said about that decision, there can be no dispute that it has not produced predictable and consistent results.”³⁵ Should Crawford be reconsidered?

1. 541 U.S. 36 (2004). ↩︎
2. Deuteronomy 19:16–18 (King James); Richard D. Friedman, The Confrontation Clause Re-Rooted and Transformed, 2003–2004 Cato S. Ct. Rev. 439, 443 (2004). ↩︎
3. Acts 25:16 (King James); Friedman, supra at 443. ↩︎
4. Friedman, supra at 444. ↩︎
5. Id. at 443–44. ↩︎
6. 1 & 2 Phil. & M., c. 13 (1554); 2 & 3 id., c. 10 (1555); Crawford, 541 U.S. at 43–44. ↩︎
7. Raleigh’s Case, 2 How. St. Tr. 1 (1603); Crawford, 541 U.S. at 44. ↩︎
8. King v. Paine, 5 Mod. 163, 87 Eng. Rep. 584 (1696); Crawford, 541 U.S. at 45–46. ↩︎
9. 5 Geo. 3, c. 12, § 57 (1765); Crawford, 541 U.S. at 47–48. ↩︎
10. Sec. & Exch. Comm’n v. Jarkesy, 603 U.S. 109, 121 (2024) (citing Resolutions of the Stamp Act Congress, Art. VIII (Oct. 19, 1765), reprinted in Sources of Our Liberties: Documentary Origins of Individual Liberties in the United States Constitution and Bill of Rights 270, 271 (R. Perry & J. Cooper eds. 1959)); Crawford, 541 U.S. at 47–48. ↩︎
11. Mass. Decl. of Rts. of 1780, § XII; N.H. Bill of Rts. of 1783, § XV; Va. Decl. of Rts. of 1776, § 8; Pa. Decl. of Rts. of 1776, § IX; Del. Decl. of Rts. of 1776, § 14; Md. Decl. of Rts. § XIX; N.C. Decl. of Rts. of 1776, § VII; Vt. Decl. of Rts. ch. I, § X. ↩︎
12. Storing 2.8.53. ↩︎
13. State v. Webb, 2 N.C. 103 (Super. L. & Eq. 1794); State v. Campbell, 30 S.C.L. 124, 1844 WL 2558 (App.L.1844); Crawford, 541 U.S. at 49–50. ↩︎
14. United States v. Burr, 25 F. Cas. 187 (No. 14,694) (CC Va. 1807) (Marshall, C.J.). ↩︎
15. Crawford, 541 U.S. at 59 n.9; id. at 71–74 (Rehnquist, C.J., concurring). ↩︎
16. 156 U.S. 237 (1895). ↩︎
17. 448 U.S. 46 (1980). ↩︎
18. 541 U.S. at 53–54. ↩︎
19. Id. at 51–52. ↩︎
20. Id. at 61. ↩︎
21. Id. at 62. ↩︎
22. 547 U.S. 813 (2006). ↩︎
23. Id. at 822. ↩︎
24. Id. at 836 (Thomas, J., concurring in part and dissenting in part). ↩︎
25. Id. at 838, 840. ↩︎
26. Williams v. Illinois, 567 U.S. 50 (2012); Bullcoming v. New Mexico, 564 U.S. 647 (2011); Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) ↩︎
27. 541 U.S. at 56 n.6; Michigan v. Bryant, 562 U.S. 344, 349, 351 n.1 (2011). ↩︎
28. 541 U.S. at 62. ↩︎
29. 554 U.S. 353, 357, 359–61, 377 (2008). ↩︎
30. 487 U.S. 1012, 1016 (1988). ↩︎
31. 497 U.S. 836, 857 (1990). ↩︎
32. United States v. Akhavan, Nos. 21-1678-cr(L) et al., 2022 WL 17825627, at *2–*5 (2d Cir. Dec. 21, 2022). ↩︎
33. 145 S.Ct. 831, 831 (2025). ↩︎
34. Id. (Alito, J.) ↩︎
35. Id. ↩︎