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Today's Confrontation Clause (After Crawford and Melendez-Diaz)

65 Pages Posted: 17 Nov 2009  

G. Michael Fenner

Creighton University School of Law

Date Written: November 16, 2009


In the Sixth Amendment to the United States Constitution, the Confrontation Clause states that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” In recent years the Supreme Court of the United States’s understanding of the meaning of this Clause may well be the single part of constitutional law - certainly of criminal procedure - that has undergone the most radical change.

This Article is about this sharp turn in the law of the Confrontation Clause. After a brief discussion of the history of the Court’s understanding of the Clause, the Article settles into a discussion of its new understanding, as found primarily in the Court’s opinion in 2004’s Crawford v. Washington and its 2009 opinion in Melendez-Diaz v. Massachusetts - a discussion of where the Court’s understanding sits today and where it may be headed. Throughout, the Article deals with the details of the coverage of the Confrontation Clause - when the right attaches and what the Clause requires when the right does attach.

It begins with a brief history of the Court’s treatment of the Confrontation Clause. It continues with a discussion of the following: Justice Thomas’s understanding of the Clause, important because it supplies the fifth vote for the majority’s new understanding; the elements foundational to the attachment of the confrontation right (testimonial statements, offered in a criminal prosecution, offered against the accused, and offered to prove the truth of the matter asserted; the importance of raising Confrontation Clause issues before the start of the trial; situations where the right attaches and might at first glance appear to be infringed, but on a closer look is not; inefficiencies created by the right to confront, how the inefficiencies are not as great as they may at first glance seem, and how, in any event, whether the right is inefficient or not is largely irrelevant; various ways to handle the traumatized victim who will be further traumatized if made to testify against the accused; forfeiture and waiver of the right to confront; and the harmless error rule as it applies to the confrontation right.

Keywords: United States Constitution, Confrontation Clause, Crawford, Melendez-Diaz, Sixth Amendment, testimonial statements, forfeiture of the right to confront, waiver of the right to confront, confrontation and inefficiency, traumatized victims, harmless error

JEL Classification: K30, K39

Suggested Citation

Fenner, G. Michael, Today's Confrontation Clause (After Crawford and Melendez-Diaz) (November 16, 2009). Available at SSRN: or

G. Michael Fenner (Contact Author)

Creighton University School of Law ( email )

2500 California Plaza
Omaha, NE 68178
United States

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