Friend or Foe? The Sixth Amendment Confrontation Clause in Post-Conviction Formal Revocation Proceedings

66 SMU L. Rev. 227 (2013)

51 Pages Posted: 6 Nov 2017 Last revised: 3 Feb 2023

See all articles by Esther Hong

Esther Hong

Arizona State University (ASU) - Sandra Day O'Connor College of Law

Date Written: 2013

Abstract

Is the Sixth Amendment Confrontation Clause a friend or foe of the Fourteenth Amendment confrontation right in parole, probation, and supervised-release revocation proceedings? The answer largely depends on whether one is looking at the present, past, or into the future. Presently, the two confrontation rights have opposing principles on how to uphold an individual’s right to confrontation. In the Sixth Amendment Confrontation Clause context, the Supreme Court cut all ties between the Confrontation Clause and the Ohio v. Roberts reliability-based standards, such that a defendant has an almost absolute right to confront an out-of-court witness who made testimonial statements against the defendant unless the witness is unavailable and there was a prior opportunity to confrontation. However, in post-conviction revocation proceedings, lower courts are still firmly holding onto Roberts by first analyzing the reliability of the hearsay evidence before determining whether a releasee has the right to confront the out-of-court declarant. Efforts to bring the due process right to confrontation closer to the Sixth Amendment right to confrontation have been unsuccessful.

The past tells a different story. Before Crawford v. Washington, courts were much more willing to allow Confrontation Clause jurisprudence to influence the due process right to confrontation jurisprudence in revocation proceedings. The two rights were so close that it was not uncommon for courts to equate the due process right to the Sixth Amendment confrontation right.

This Article presents a detailed analysis of the past and present relationship between the two confrontation rights. It also advocates a future where the standards for the due process right to confrontation in revocation proceedings are changed so that they align more with Sixth Amendment Confrontation Clause principles.

Keywords: Confrontation Clause, Sixth Amendment, Fourteenth Amendment due process right to confrontation, revocation proceeding

Suggested Citation

Hong, Esther, Friend or Foe? The Sixth Amendment Confrontation Clause in Post-Conviction Formal Revocation Proceedings (2013). 66 SMU L. Rev. 227 (2013), Available at SSRN: https://ssrn.com/abstract=3065368

Esther Hong (Contact Author)

Arizona State University (ASU) - Sandra Day O'Connor College of Law ( email )

Box 877906
Tempe, AZ 85287-7906
United States

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