Confrontation as a Rule of Production

52 Pages Posted: 20 Mar 2016 Last revised: 6 Sep 2019

See all articles by Pamela R. Metzger

Pamela R. Metzger

Southern Methodist University - Dedman School of Law

Date Written: March 19, 2016


The Confrontation Clause is cost blind; the Supreme Court is not. In 2004, in Crawford v. Washington, the Supreme Court trumpeted its commitment to a procedural Confrontation Clause that required the prosecution to produce its witnesses in court, regardless of the cost or inconvenience. In 2007, in Melendez-Diaz v. Massachusetts, the Court retreated, offering courts, legislatures, and prosecutors an easy way to avoid Confrontation-laden trials. On the one hand, the Court warned that legislatures and courts could not “suspend the Confrontation Clause,” even if there were “other ways — and in some cases better ways — to challenge or verify” the prosecution’s evidence. On the other hand, the Court declared that states were “free to adopt procedural rules” that require a defendant to demand, or forfeit by inaction, the protections of the Confrontation Clause. As a result, despite Crawford’s promise, legislatures continue to minimize, or eliminate, the prosecution’s burden of producing its testimonial witnesses.

This Article explores and critiques the Supreme Court’s puzzling production-minimizing approach to the Confrontation Clause. It does so, in part, by analyzing the Court’s ambivalence about the value of production as an ongoing battle over constitutional costs. This battle pits the enforcement of constitutional structure against the management of criminal justice costs. Of course, positing a conflict between constitutional structure and constitutional cost is itself a false dichotomy, one that fundamentally misunderstands the architecture of adversarial criminal procedure. Nevertheless, between 1965 and 2004, the Supreme Court embraced that dichotomy and a resultant jurisprudence of costs drove the Court’s Confrontation jurisprudence. Under this pre-Crawford jurisprudence, the Supreme Court held that the Confrontation Clause did not bar the admission of an out-of-court statement if it fell within a firmly rooted exception to the hearsay rule.

Since 2004, the Court claims to have rejected a cost-centric jurisprudence. Crawford held that “[t]estimonial statements of witnesses absent from trial [can be] admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” Crawford claimed to have restored Confrontation as a rule of production: The Confrontation Clause “commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” However, Confrontation’s costs still preoccupy the Court; the Court simply sells that old, cost-conscious wine in new, Crawford-approved bottles. The result has been a withered Confrontation jurisprudence that undermines the Confrontation Clause and the core structural premises of constitutional criminal procedure.

Because the Confrontation Clause’s production mandate has been all but forgotten by the Court and most scholars, Part I describes the Confrontation Clause’s burden of production. Critically, before the Confrontation Clause bestows any rights upon the accused, it burdens the prosecution by requiring it to produce its witnesses at trial. Witness production — not cross-examination — is the threshold procedural demand of the Confrontation Clause. Confrontation’s burden of production regulates the prosecution’s presentation of testimonial evidence at every criminal trial. In contrast, the accused’s Confrontation rights (face-to-face confrontation and cross-examination) are contingent; they depend for their existence upon the prosecution’s presentation of its witnesses’ testimony.

Part II chronicles the erosion of a pre-incorporation production-centric Confrontation jurisprudence and the development of a production-minimizing Confrontation jurisprudence. In its earliest Confrontation Clause opinions, the Court acknowledged Confrontation’s primary goal of regulating the prosecution’s presentation of evidence. However, following the Court’s incorporation of the Confrontation Clause, the Court developed a reliability-focused Confrontation Clause jurisprudence. The Court began to balance Confrontation’s alleged production costs against Confrontation’s unequivocal production mandate. The Court justified this extra-Constitutional balancing test by disparaging or dismissing the importance of Confrontation’s production imperative. The Court further rationalized its restrictive Confrontation Clause with a myopic focus on cross-examination and a corresponding deprecation of face-to-face confrontation. By elevating cross-examination over production, the Court justified the admission of “reliable” out-of-court declarations in lieu of prosecutorial production of testifying witnesses. The Supreme Court eviscerated Confrontation’s production imperative in order to reduce Confrontation’s impact on case outcomes, conserve scarce prosecutorial resources, and advance a wide range of public policy goals.

As Part III explains, since its Crawford decision in 2005, the Court has rhetorically embraced Confrontation’s procedural mandate of witness production. Yet, the Court has refused to fully enforce Confrontation’s rigorous demands. The Court remains deeply ambivalent about the costs of witness production and about the consequences of demanding it. In a trio of post-Crawford cases, the Court has suggested that the Constitution permits “notice and demand” statutes that require a defendant to make a pretrial motion to confront a state’s witness or waive, by inaction, his right to confrontation. Part III explains this notice-and-demand phenomenon as a product of a jurisprudential battle that pits the enforcement of criminal procedure mandates against the management of criminal procedure costs. By trivializing the constitutional significance of prosecutorial witness production, the Court has rationalized a continued noncompliance with the prosecutorial obligation to produce testimonial witnesses.

Part IV offers an in-depth critique of the Court’s claim that the Constitution permits a demand-waiver theory of Confrontation. Neither precedent nor logic support an interpretation of the Confrontation Clause in which a defendant must demand, or forfeit by silence, the enforcement of Confrontation’s production imperative. When the Court balances Confrontation’s costs against the Constitution’s unequivocal production mandate, it undermines the integrity of the adversary system of justice. Legislatures, police, and prosecutors can consider Confrontation’s costs in deciding whether and how to prosecute crime; the Supreme Court cannot and should not. Confrontation’s production imperative is non-negotiable.

Keywords: confrontation, production, notice-and-demand, notice and demand, Melendez-Diaz, Bullcoming, Crawford

Suggested Citation

Metzger, Pamela R., Confrontation as a Rule of Production (March 19, 2016). 24 William & Mary Bill of Rights 995 (2016), Tulane Public Law Research Paper No. 16-5, Available at SSRN:

Pamela R. Metzger (Contact Author)

Southern Methodist University - Dedman School of Law ( email )

P.O. Box 750116
Dallas, TX 75275
United States

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