Confrontation Clause

The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that "in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him." Generally, the right is to have a face-to-face confrontation with witnesses who are offering testimonial evidence against the accused in the form of cross-examination during a trial. The Fourteenth Amendment makes the right to confrontation applicable to the states and not just the federal government. The right only applies to criminal prosecutions, not civil cases or other proceedings.

The Confrontation Clause has its roots in both English common law, protecting the right of cross-examination, and Roman law, which guaranteed persons accused of a crime the right to look their accusers in the eye. In noting the right's long history, the United States Supreme Court has cited Acts of the Apostles 25:16, which reports the Roman governor Porcius Festus, discussing the proper treatment of his prisoner Paul: "It is not the manner of the Romans to deliver any man up to die before the accused has met his accusers face-to-face, and has been given a chance to defend himself against the charges." It is also cited in Shakespeare's Richard II, Blackstone's treatise, and statutes.

In 2004, in Crawford v. Washington, the Supreme Court of the United States significantly redefined the application of the right to confrontation. In Crawford, the Supreme Court changed the inquiry from whether the evidence offered had an "indicia of reliability" to whether the evidence is testimonial hearsay. The shift was from a substantive and subjective inquiry into the reliability of the evidence, to a procedural question of whether the defendant had been afforded the right to confront her or his accuser. The Court implicitly noted the shift, "Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because the defendant is obviously guilty."

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