Page Hero

Hero Image

Confrontation & Cross-Examination

The Sixth Amendment right to confront witnesses provides that "in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him."  


Confrontation & Cross-Examination Resources


CONFRONTATION 

The right to confront witnesses is a bedrock principle of a defedant's Sixth Amendment rights, however the constitutional analysis of whether that right has been violated has changed in recent years.  In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court fundamentally changed the manner in which the right to confrontation should be analyzed.  Prior to Crawford, courts could admit out-of-court statements if the hearsay statement fell within a “firmly-rooted exception” or if it bore “particularized guarantees of trustworthiness.” Ohio v. Roberts, 448 U.S. 56, 66 (1980).  The Crawford decision rejected the reliability test as a basis for admissibility and instead looked first to whether the statement is "testimonial evidence."  If the statement is testimonial, the Confrontatation Clause renders the statement inadmissible unless 1) the declarant was unavailable AND 2) the defendant had a prior opportunity to cross-examine the declarant.

The Court nevertheless carved out some exceptions to the right to confrontation:

1) Wrongdoing: If a witness becomes unavailable as a result of the defendant's actions, the right is forfeited.

2) Dying declaration: See Michigan v. Bryant, 562 U.S. 344 (2011) discussion of dying declaration as an historical exception to the right to confrontation.

The Court clarified Crawford’s “testimonial” requirement in Davis v. Washington, 547 U.S. 813 (2006) and Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009).  In Davis, the Court ruled that statements made in a 911 call and in the course of an emergency were not "testimonial" in nature and were not generated for the purpose of being used in a future prosecution.  Given that the 911 call is not testimonial, the Crawford analysis does not apply.

In Melendez-Diaz, the Court considered whether a forensic lab report that was prepared for use in a criminal prosecution is “testimonial” evidence and therefore subject to the Crawford test for admissibility.  The Court found that a chemist’s drug-analysis affidavit falls “within the core class of testimonial statements” identified by Crawford, because it was “functionally identical to live, in-court testimony, doing precisely what a witness does on direct examination.” 

Continue reading below

 

CROSS-EXAMINATION

An important corollary to the right to confront accusers, is the right to test the reliability and credibility of those witnesses through the process of cross-examination.

The right of cross-examination is more than a desirable rule of trial procedure. It is implicit in the constitutional right of confrontation, and helps assure the “accuracy of the truth-determining process.” It is, indeed, “an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal.” 

Chambers v. Mississippi, 410 U.S. 284, 295 (1973)

Cross-examination is a powerful tool that can be used to bolster a party's theory of the case, contradict evidence introduced through the opposing party's witness, and ultimately to discredit the testimony of a witness.  However, it can be a double-edged sword for litigators because cross-examination may "open the door" to damaging redirect examination that would have ordinarly be barred if elicited on direct examination.

Continue reading below

Featured Products

 


 

If you are interested in obtaining Training and Technical Assistance (TTA) related to strengthening Sixth Amendment protections in your jurisdiction, click the link below.

APPLY FOR TTA HERE

 

 

Explore keywords to find information

RECENTLY ADDED & UPCOMING

  1. The Champion
    /Nacdl/media/image_library/StayInformed/Champion/ChampionCovers/March-April-2025.jpg?ext=.jpg

    March/April 2025

    What are the evidentiary implications of field sobriety tests in marijuana cases? Does the odor of marijuana give officers probable cause to search a vehicle?

  2. Amicus Brief
    /Nacdl/media/image_library/Elements/global/amicus.png

    Jenner & Block LLP v. U.S. Department of Justice

    Brief of the National Association of Criminal Defense Lawyers and New York Council of Defense Lawyers as Amici Curiae in Support of Plaintiff’s Motion for Summary Judgment.

  3. News Release
    /Nacdl/media/image_library/Elements/global/newsrelease.png

    News Release ~ Law Enforcement Executive Order

    NACDL Warns Executive Order's Dangerous Overreach Undermines Community Safety and Trust in Police – Washington, DC (April 29, 2025) – The National Association of Criminal Defense Lawyers (NACDL) expressed deep concern regarding the Executive Order titled "Strengthening and Unleashing America’s Law Enforcement to Pursue Criminals and Protect Innocent Citizens," cautioning that several of its proposals represent a dangerous overreach that undermines these goals by jeopardizing individual rights and the legitimacy of law enforcement in the eyes of the community.

  4. Event
    /Nacdl/media/image_library/Learn/nacdlcleinstitute/2025_Post-Dobbs_Trial_Tactics_2025-02-26_v02_Event-Listing_2.jpg?ext=.jpg

    Trial Tactics for Pregnancy-Related Cases: Skills for Every Defender

    LOCATION: The University of Texas School of Law, Austin, TX
    DATE: May 16-17, 2025
    COST: FREE (registration is required)
    CLE Credit: Up to 14.5 credits 

  5. Webinar
    /assets/img/nacdl_og.png

    Collaborative Approaches to Appellate Defense: Recognizing Clients' Legal Expertise

    WHEN: Thursday, May 8, 3:00-4:30pm ET / 12:00-1:30pm PT
    CLE CREDIT: not available
    COST: Free