Confrontation in the Age of Plea Bargaining

Abstract

A defendant’s right to confront the witnesses against him is a cornerstone of our adversarial system of criminal justice. Or is it? Under current law, defendants can invoke their confrontation right only by going to trial. But trials account for about five percent of criminal convictions. That means that the overwhelming majority of defendants convicted in the United States never get to exercise their constitutional right to confront the government’s witnesses.

This Essay argues that the Supreme Court should align its Confrontation Clause jurisprudence with the reality of contemporary criminal justice. The Sixth Amendment grants a criminal defendant the right “to be confronted with the witnesses against him.” The problem is that the Court reads this text as if it said “the witnesses against him at trial.” Nothing compels the Court’s trial-centric gloss on what it means to be a witness. To the contrary, the Confrontation Clause’s text and purposes point towards recognizing that those whose “testimony” the government relies on in plea bargaining are “witnesses” too. This Essay therefore proposes a procedural device through which defendants could exercise their right to confront (i.e., cross-examine) that class of witnesses—the “Sixth Amendment deposition.” By conducting Sixth Amendment depositions, defendants would learn the strengths and weaknesses of the government’s evidence, enabling them to negotiate fairer and more reliable plea bargains. Sixth Amendment depositions would deliver to our “system of pleas” what confrontation at trial brought to an earlier version of American criminal justice—adjudication enhanced by adversarial testing of the government’s case.

Keywords: criminal procedure, criminal justice, plea bargaining, confrontation, Sixth Amendment

JEL Classification: K14, K41