45 Texas Tech Law Review 83 (2012)
21 Pages Posted: 19 Jun 2013
Date Written: 2012
After Crawford v. Washington, 541 U.S. 36, 42 (2004), face-to-face confrontation between accused and accuser is the constitutionally normative mode of presentation for testimonial evidence. Yet, eight years into the Crawford revolution, courts routinely hold that counsel can waive a defendant's confrontation rights without even discussing the matter with the defendant. Why? Because counsel, not client, has the authority to decide whether to confront and cross-examine government witnesses.
This Essay, written as part of the Texas Tech Sixth Amendment Symposium, explores this peculiar and perplexing rule. If confrontation is essential to a constitutionally valid criminal trial, how can defense counsel waive the confrontation right without the accused's consent? Does the right to counsel truly extinguish a defendant's right to demand confrontation?
In this Essay, I explain how the artificial fundamental rights doctrine has ceded confrontation control to counsel. Then, I consider and critique the jurisprudence addressing defendant claims about confrontation rights that were waived or forfeited by defense counsel. Along the way, I offer some observations about the implications of ceding confrontation control to counsel. I conclude by arguing that the right to confrontation best serves its purposes when defendants control the exercise of the right.
Keywords: Sixth Amendment, Confrontation, Crawford v. Washington, criminal defense, agency, attorney-client
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