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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


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.” 

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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.

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