Document Type

Article

Publication Title

Valparaiso University Law Review

Abstract

The Confrontation Clause of the Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right.., to be confronted with the witnesses against him..." The words illustrate the difference between simplicity and clarity. While eloquent and spare, they lack not only detail, but clear reference. Even if the terms "criminal prosecutions" and "accused" have - as the expression goes - plain meaning, two ambiguities almost immediately become apparent. The first is what it means to "confront" the witnesses against one. To note two highly polar positions among the many that are possible, Dean Wigmore thought "confrontation" meant cross-examination, and Justice Scalia thinks it means eye contact between the defendant and an accusing witness while the latter is testifying at trial. The second ambiguity is who these witnesses are. They might, for example, be only the persons actually appearing to testify at trial, or alternatively they might be all persons whose statements are used as evidence against the defendant. The lack of clear textual or historical guidance has encouraged the Supreme Court to follow a lurching course in its twenty-six years of active Confrontation Clause jurisprudence, but one whose direction now seems clear. After initially handing defendants a series of victories, the Court began in 1970 regularly to reject defendants' challenges. The few defendants' victories in confrontation cases over the last twenty years are of limited scope and may no longer command majorities given changes in Court personnel. Surveying this doctrinal background, I have three reactions, one of historical and textual interpretation to the Court's approach, one of policy to the Court's approach, and one of both to Justice Scalia's approach. First, from a historical and textual perspective, I believe that the Court's framework of analysis is basically sound, but that in some instances it has allowed prosecutors too much leeway, due to its somewhat unsympathetic attitude in this area towards defendants. Second, if one ignores the Confrontation Clause and asks only what would be optimal rules for trials, the Court's position becomes more defensible, and might even be unnecessarily restrictive of prosecutors. One could argue powerfully for a more permissive approach to the conduct of trials than the Confrontation Clause seems to anticipate, relying on the adversary system to bring out the best evidence and on the jury to draw appropriate inferences from its non-production. Third, from the perspectives of both history and policy, I find Justice Scalia's approach deficient.

First Page

337

Volume

26

Publication Date

1991

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