The Five Faces of the Confrontation Clause

77 Pages Posted: 27 Sep 2007

See all articles by Carol A. Chase

Carol A. Chase

Pepperdine University - Rick J. Caruso School of Law


Through a series of landmark Supreme Court cases, this essay traces the evolution of the Court's jurisprudence in the area of the five categorical rights afforded the criminal defendant by the Sixth Amendment Confrontation Clause. The first right addressed is the right to be present at one's trial. Despite being rooted in the Due Process Clause and being required by the Federal Rules of Evidence, Chase discusses how this constitutional right is not absolute. Second is the criminal defendant's right to require a witness to testify in his presence. Chase illustrates how the Court expanded on the two competing interests underlying this right: the defendant's interest in testing the reliability of the evidence presented against him versus the interest of the state to offer proof of an offense, to include a third interest: avoiding additional hardship on the victim by having to face his attacker. Third is the right to cross-examine adverse witnesses. After demonstrating how cross-examination serves as a truth telling device, Chase analyses the Supreme Court's interpretation of the limits placed on a state's ability to restrict a criminal defendant's right to cross-examination an adverse witness, particularly in three separate contexts: limitations imposed by the court, by the witness himself and those resulting from a denial of pretrial discovery. The fourth trial right is the Confrontation Clause's function as an additional barrier on the use of hearsay evidence - words uttered or written by someone who is not present or testifying at trial. Addressed is the Court's traditional approach to the admissibility of hearsay evidence under the Ohio v. Roberts two-prong test prior its decision in Crawford v. Washington. Chase concludes her analysis with the fifth right, the Confrontation Clause's limitation on the admissibility of "spillover" confessions - third-party confessions sought to be included by the state which incriminate the current criminal defendant - demonstrating the various exceptions permitting such confessions into evidence, as well as the remedies used to the preserve the criminal defendant's constitutional rights.

Keywords: confrontation clause, sixth amendment, criminal, defendant

JEL Classification: K14

Suggested Citation

Chase, Carol A., The Five Faces of the Confrontation Clause. Houston Law Review, Vol. 40, 2003, Available at SSRN:

Carol A. Chase (Contact Author)

Pepperdine University - Rick J. Caruso School of Law ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States

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