The Dignity Value of Face-to-Face Confrontations
56 Pages Posted: 25 Mar 2015
Date Written: March 23, 2015
The sixth amendment assures several protections of the criminal defendant, including the right of an accused "to be confronted with the witnesses against him." This language is simple, yet its purpose and application remain obscure. This article discusses the Supreme Court's theory of the confrontation clause, critiques that theory, and suggests an alternative.
This article proposes a theory of the confrontation guarantee that corresponds with common notions of fairness to the accused. The first section reviews the history and language of the confrontation clause, from which a preliminary definition of the guarantee is extracted. The next section analyzes the Supreme Court's recent confrontation clause decisions. The discussion shows that the Court's past statement that reliability is the central value of confrontation has led the Court to ask the wrong questions, and, on occasion, to give the wrong answers in its confrontation clause decisions. Missing from the reliability calculus is a consideration of the value of face-to-face confrontation beyond assuring evidence reliability. As the Court's most recent confrontation clause decision shows, even reliable out-of-court testimony against the accused may offend the Constitution. The right of confrontation also promotes an intrinsic, nonfunctional interest: to preserve the dignity of the criminal defendant.
Keywords: Sixth Amendment, confrontation clause, cross-examination, witness credibility, evidence reliability
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