Document Type
Article
Publication Title
Hastings Constitutional Law Quarterly
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 ..." Under a functional view, the clause prevents prosecutorial misconduct and increases the reliability of guilty verdicts by requiring that certain evidence be subject to in-court challenge before it can serve as the basis for a conviction. Under a formalistic view, the clause merely creates specific rules of the game for criminal trials - rules that are constitutionally mandated without regard to any policy. Many people prefer a functional view; others, a formalistic view. The Supreme Court prefers both. When the issue has been whether a defendant's confrontation of a witness at trial was constitutionally adequate, the Court has been formalistic and largely has disregarded policy. But when the issue has been whether confrontation at trial was constitutionally necessary (for instance, whether a conviction based on hearsay was constitutional), the Court has treated the policy of ensuring reliability as determinative. Thus, the Court has applied a bifurcated approach to the Confrontation Clause, without acknowledgement or explanation. This Article first describes this approach through the examination of several recent cases. Then it briefly considers both the defects of this approach and why the Court has followed it.
First Page
383
Volume
17
Publication Date
1990
Recommended Citation
Daniel N. Shaviro,
The Supreme Court's Bifurcated Interpretation of the Confrontation Clause,
17
Hastings Constitutional Law Quarterly
383
(1990).
Available at:
https://gretchen.law.nyu.edu/fac-articles/1070
