Notice and Confrontation of Witnesses Under the Sixth Amendment

The Sixth Amendment makes a lot of important guarantees for those accused of a crime. You've probably heard, for example, that you have the right to be assisted by an attorney. That's because of the Sixth Amendment. But the Sixth Amendment also states that a person must be notified of the charges against them, and given the chance to confront their accuser and other witnesses.

Everyone should have someone on their side to protect their constitutional rights, especially if they've been accused of a crime. If you or someone you know faces criminal charges, talk to a criminal defense lawyer right away.

What the Sixth Amendment Says

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."

What It Means

United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation

In Mattox v. United States, the Supreme Court wrote: "The primary object of the Confrontation Clause is to prevent depositions of ex parte affidavits being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief."¹

The right of confrontation is one of the fundamental guarantees of life and liberty long deemed so essential for the due protection of life and liberty that it is guarded against legislative and judicial action by provisions in the Constitution of the United States and in the constitutions of most if not of all the States composing the Union.² Before 1965, when the Court held the right to be protected against state abridgment,³ it had little need to clarify the relationship between the right of confrontation and the hearsay rule,⁴ because it could control the admission of hearsay through exercise of its supervisory powers over the inferior federal courts.⁵

On the basis of the Confrontation Clause, the Court had concluded that evidence given at a preliminary hearing could not be used at the trial if the absence of the witness was attributable to the negligence of the prosecution,⁶ but that if a witness' absence had been procured by the defendant, testimony given at a previous trial on a different indictment could be used at the subsequent trial.⁷ The Court had also recognized the admissibility of dying declarations⁸ and of testimony given at a former trial by a witness since deceased.⁹ The prosecution was not permitted to use a judgment of conviction against other defendants on charges of theft in order to prove that the property found in the possession of the defendant now on trial was stolen.¹⁰ A prosecutor, however, may comment on a defendant's presence at trial, and call attention to the defendant's opportunity to tailor his or her testimony to comport with that of previous witnesses.¹¹

In Ohio v. Roberts,¹² a Court majority adopted a reliability test for satisfying the confrontation requirement through the use of a statement by an unavailable witness.¹³ Over the course of 24 years, Roberts was applied, narrowed,¹⁴ and finally overruled in Crawford v. Washington.¹⁵ The Court in Crawford rejected reliance on particularized guarantees of trustworthiness as inconsistent with the requirements of the Confrontation Clause. The Clause commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.¹⁶ Reliability is an amorphous concept that is manipulable, and the Roberts test had been applied to admit core testimonial statements that the Confrontation Clause plainly meant to exclude.¹⁷ Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.¹⁸

Crawford represented a decisive turning point by clearly stating the basic principles to be used in Confrontation Clause analysis. Testimonial evidence may be admitted against a criminal defendant only if the declarant is available for cross-examination at trial, or, if the declarant is unavailable (and the government has made reasonable efforts to procure his presence), the defendant has had a prior opportunity to cross-examine as to the content of the statement.¹⁹

What statements are testimonial? In Crawford , the Court wrote: Various formulations of this core class of testimonial statements exist: ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; extrajudicial statements contained in formalized testimonial material, such as affidavits, depositions, prior testimony, or confessions; statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.²⁰ The Court added that it would leave for another day any effort to spell out a comprehensive definition of 'testimonial,' but, [w]hatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.²¹

The Court subsequently concluded that little more than the application of the holding in Crawford v. Washington was needed to find that affidavits reporting the results of forensic analysis which showed that material seized by the police and connected to the defendant was cocaine were subject to the right of confrontation. The Court found that the analysts were required to testify in person even though state law declared their affidavits prima facie evidence of the composition, quality, and the net weight of the narcotic analyzed.²² Further, where such testimony is required, the prosecution may not use a surrogate witness who, although familiar with the mechanics of forensic testing, had not signed the certification or personally performed or observed the performance of the test. Such a surrogate could not speak to concerns about the integrity of testing procedures or to questions about the performance of the certifying analyst.²³ A year after this apparently straightforward holding in Bullcoming v. New Mexico, however, the Court's guidance on trial consideration of forensic reports was clouded by Williams v. Illinois.²⁴

In Williams, an expert witness (not a surrogate witness from the testing lab) testified that a DNA profile she had prepared from the defendant's blood matched a DNA profile reported by an outside lab from a swab of a rape victim. A four-Justice plurality held that the expert incorporated the lab's report in her testimony in a way not intended to prove that the outside lab had in fact tested a swab from a particular rape victim and come up with the defendant's DNA profile, but rather in a way solely intended to establish a basis for the expert's opinion that two DNA profiles matched. Four dissenters vigorously asserted the contrary, finding that the outside lab's report served the purpose of incriminating the defendant directly because it identified the rape victim as the source of the material the lab profiled. The expert's testimony effectively was used to connect the defendant with a named individual and not just his DNA profile with a DNA sample obtained from some unnamed source. Accordingly, the dissent asserted the Confrontation Clause required that the defendant have an opportunity to examine the lab technicians responsible for the report. The ninth Justice in the case, Justice Thomas, agreed the report was directly incriminating because the expert expressly used it to link her profile of the defendant's DNA to the rape victim. Nevertheless, Justice Thomas concurred in the judgment of the plurality, reprising his opinion stated in earlier cases²⁵ that the Confrontation Clause covers only formalized statements of a solemnity that the uncertified lab report in this case lacked.

Exceptions to the Confrontation Clause

Generally, the only exceptions to the right of confrontation that the Court has acknowledged are the two that existed under common law at the time of the founding: declarations made by a speaker who was both on the brink of death and aware that he was dying, and statements of a witness who was 'detained' or 'kept away' by the 'means or procurement' of the defendant.²⁶ The second of these exceptions applies only when the defendant engaged in conduct designed to prevent the witness from testifying.²⁷ Thus, in a trial for murder, the question arose whether statements made by the victim to a police officer three weeks before she was murdered, that the defendant had threatened her, could be admitted. The state court had admitted them on the basis that the defendant's having murdered the victim had made the victim unavailable to testify, but the Supreme Court reversed, holding that, unless the testimony had been confronted or fell within the dying declaration exception, it could not be admitted on the basis of a prior judicial assessment that the defendant is guilty as charged, for to admit it on that basis it would not sit well with the right to trial by jury.²⁸

In Davis v. Washington,²⁹ the Court began to explore the parameters of Crawford by considering when a police interrogation is testimonial for purposes of the Confrontation Clause. Davis involved a 911 call in which a woman described being assaulted by a former boyfriend. A tape of that call was admitted as evidence of a felony violation of a domestic no-contact order, despite the fact that the woman in question did not testify. Although again declining to establish all the parameters of when a response to police interrogation is testimonial, the Court held that statements to the police are nontestimonial when made under circumstances that objectively indicat[e] that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.³⁰ Statements made after such an emergency has ended, however, would be treated as testimonial and could not be introduced into evidence.³¹

In Michigan v. Bryant,³² however, the Court appeared to extend the scope and basis of the ongoing emergency exception. In Bryant, a man dying from a gunshot wound was found by police lying on the ground next to his car in a gas station parking lot, several blocks away from where he had been shot. In response to questions from several police officers, the victim identified the defendant as his assailant, and his response was later used in the defendant's trial despite the victim's unavailability to testify. In determining whether such statements were related to an ongoing emergency (and thus were non-testimonial), the majority noted that an objective analysis of this question was highly context-dependent,³³ and depended on the nature of the crime, the weapon utilized, the medical condition of the victim, and the formality of the setting.

Further, in determining the testimonial nature of such information, the Court considered not just the intent of the declarant, but also the intentions of the police coming upon the crime scene who, ignorant of preceding events, began seeking information to decide whether there was a continuing danger to the victim or the public.³⁴ Considering that there are other potential exceptions to the Confrontation Clause where the primary purpose for creation of evidence is not related to gathering evidence for trial,³⁵ the breadth of this opinion may signal a retreat from the limits of Crawford .

The Court continued its shift away from a broader reading of Crawford in Ohio v. Clark,³⁶ a case that held that the Confrontation Clause did not bar the introduction of statements that a child made to his preschool teacher regarding abuse committed by the defendant.³⁷ To reach its holding, the Court, relying on a multi-factor approach to the primary purpose test similar to Bryant, noted that the statements in question:

1. Occurred in the context of an ongoing emergency involving suspected child abuse;
2. Were made by a very young child, who did not intend his statements to be a substitute for trial testimony;
3. Historically were admissible at common law; and
4. Were not made to law enforcement officers.³⁸

In so holding, the Court appeared to lessen the importance of the primary purpose test, concluding that the primary purpose test is a necessary, but not always sufficient, condition for the exclusion of out-of-court statements under the Sixth Amendment, as evidence that satisfies the primary purpose test may still be presented at trial if the evidence would have been admissible at the time of the founding.³⁹

In two pre- Crawford cases, the Court took contrasting approaches to the Confrontation Clause regarding state efforts to protect a child from psychological trauma while testifying. In Coy v. Iowa,⁴⁰ the Court held that the right of confrontation is violated by a procedure, authorized by statute, placing a one-way screen between complaining child witnesses and the defendant, thereby sparing the witnesses from viewing the defendant. This conclusion was reached even though the witnesses could be viewed by the defendant's counsel and by the judge and jury, even though the right of cross-examination was in no way limited, and even though the state asserted a strong interest in protecting the child sex abuse victims from further trauma.⁴¹

The Court's opinion by Justice Scalia declared that a defendant's right during his trial to a face-to-face confrontation with his accusers derives from the irreducible literal meaning of the clause, and traces to the beginnings of Western legal culture.⁴² Squarely rejecting the Wigmore view that the only essential interest preserved by the right was cross-examination,⁴³ the Court emphasized the importance of face-to-face confrontation in eliciting truthful testimony.

Coy's interpretation of the Confrontation Clause, though not its result, was rejected in Maryland v. Craig.⁴⁴ In Craig, the Court upheld Maryland's use of one-way, closed-circuit television to protect a child witness in a sex crime from viewing the defendant. As in Coy, procedural protections other than confrontation were afforded: the child witness must testify under oath, is subject to cross-examination, and is viewed by the judge, jury, and defendant.

The critical factual difference between the two cases was that Maryland required a case-specific finding that the child witness would be traumatized by the presence of the defendant, while the Iowa procedures struck down in Coy rested on a statutory presumption of trauma. But the difference in approach is explained by the fact that Justice O'Connor's views, expressed in a concurring opinion in Coy, became the opinion of the Court in Craig.⁴⁵ Beginning with the proposition that the Confrontation Clause does not, as evidenced by hearsay exceptions, grant an absolute right to face-to-face confrontation, the Court in Craig described the clause as reflect[ing] a preference for a face-to-face confrontation.⁴⁶ This preference can be overcome only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.⁴⁷

Relying on the traditional and transcendent state interest in protecting the welfare of children, on the significant number of state laws designed to protect child witnesses, and on the growing body of academic literature documenting the psychological trauma suffered by child abuse victims,⁴⁸ the Court found a state interest sufficiently important to outweigh a defendant's right to face-to-face confrontation. Reliability of the testimony was assured by the rigorous adversarial testing [that] preserves the essence of effective confrontation.⁴⁹ All of this, of course, would have led to a different result in Coy as well, but Coy was distinguished with the caveat that [t]he requisite finding of necessity must, of course, be a case-specific one; Maryland's required finding that a child witness would suffer serious emotional distress if not protected was clearly adequate for this purpose.⁵⁰

In another case involving child sex crime victims, the Court held that there is no right of face-to-face confrontation at an in-chambers hearing to determine the competency of a child victim to testify, because the defendant's attorney participated in the hearing, and because the procedures allowed full and effective opportunity to cross-examine the witness at trial and request reconsideration of the competency ruling.⁵¹ And there is no absolute right to confront witnesses with relevant evidence impeaching those witnesses; failure to comply with a rape shield law's notice requirement can validly preclude the introduction of evidence relating to a witness's prior sexual history.⁵²

Notice of Charges

The constitutional right to be informed of the nature and cause of the accusation entitles the defendant to insist that the indictment apprise him of the crime charged with such reasonable certainty that he can make his defense and protect himself after judgment against another prosecution on the same charge.⁵³ No indictment is sufficient if it does not allege all of the ingredients that constitute the crime. Where the language of a statute is, according to the natural import of the words, fully descriptive of the offense, it is sufficient if the indictment follows the statutory phraseology,⁵⁴ but where the elements of the crime have to be ascertained by reference to the common law or to other statutes, it is not sufficient to set forth the offense in the words of the statute. The facts necessary to bring the case within the statutory definition must also be alleged.⁵⁵ If an offense cannot be accurately and clearly described without an allegation that the accused is not within an exception contained in the statutes, an indictment that does not contain such allegation is defective.⁵⁶ Despite the omission of obscene particulars, an indictment in general language is good if the unlawful conduct is described so as reasonably to inform the accused of the nature of the charge sought to be established against him.⁵⁷ The Constitution does not require the government to furnish a copy of the indictment to an accused.⁵⁸ The right to notice of accusation is so fundamental a part of procedural due process that the states are required to observe it.⁵⁹

Footnotes

1. 156 U.S. 237, 242–43 (1895).
2. Kirby v. United States, 174 U.S. 47, 55, 56 (1899). Cf. Pointer v. Texas, 380 U.S. 400, 404–05 (1965). The right may be waived but it must be a knowing, intelligent waiver uncoerced from defendant. Brookhart v. Janis, 384 U.S. 1 (1966).
3. Pointer v. Texas, 380 U.S. 400 (1965) (overruling West v. Louisiana, 194 U.S. 258 (1904)); see also Stein v. New York, 346 U.S. 156, 195–96 (1953).
4. Hearsay is the prior out-of-court statements of a person, offered affirmatively for the truth of the matters asserted, presented at trial either orally by another person or in writing. Hickory v. United States, 151 U.S. 303, 309 (1894); Southern Ry. v. Gray, 241 U.S. 333, 337 (1916); Bridges v. Wixon, 326 U.S. 135 (1945).
5. Thus, although it had concluded that the co-conspirator exception to the hearsay rule was consistent with the Confrontation Clause, Delaney v. United States, 263 U.S. 586, 590 (1924), the Court's formulation of the exception and its limitations was pursuant to its supervisory powers. Lutwak v. United States, 344 U.S. 604 (1953); Krulewitch v. United States, 336 U.S. 440 (1949).
6. Motes v. United States, 178 U.S. 458 (1900).
7. Reynolds v. United States, 98 U.S. (8 Otto) 145 (1878).
8. Kirby v. United States, 174 U.S. 47, 61 (1899); Robertson v. Baldwin, 165 U.S. 275, 282 (1897).
9. Mattox v. United States, 156 U.S. 237, 240 (1895).
10. Kirby v. United States, 174 U.S. 47 (1899), and Dowdell v. United States, 221 U.S. 325 (1911), recognized the inapplicability of the clause to the admission of documentary evidence to establish collateral facts, admissible under the common law, to permit certification as an additional record to the appellate court of the events of the trial.
11. Portuondo v. Agard, 529 U.S. 61 (2000).
12. 448 U.S. 56 (1980). The witness was absent from home and her parents testified they did not know where she was or how to get in touch with her. The state's sole effort to locate her was to deliver a series of subpoenas to her parents' home. Over the objection of three dissenters, the Court held this to be an adequate basis to demonstrate her unavailability. Id. at 74–77.
13. Once a witness is shown to be unavailable, the Clause countenances only hearsay marked with such trustworthiness that 'there is no material departure from the reason of the general rule.' 448 U.S. at 65 (quoting Snyder v. Massachusetts, 291 U.S. 97, 107 (1934)). The Court indicated that reliability could be inferred without more if the evidence falls within a firmly rooted hearsay exception.
14. Applying Roberts, the Court held that the fact that the defendant's and codefendant's confessions interlocked on a number of points was not a sufficient indicium of reliability, since the confessions diverged on the critical issues of the respective roles of the two defendants. Lee v. Illinois, 476 U.S. 530 (1986). Roberts was narrowed in United States v. Inadi, 475 U.S. 387 (1986), which held that the rule of necessity is confined to use of testimony from a prior judicial proceeding, and is inapplicable to co-conspirators' out-of-court statements. See also White v. Illinois, 502 U.S. 346, 357 (1992) (holding admissible evidence embraced within such firmly rooted exceptions to the hearsay rule as those for spontaneous declarations and statements made for medical treatment); and Idaho v. Wright, 497 U.S. 805, 822–23 (1990) (insufficient evidence of the trustworthiness of statements made by child sex crime victim to her pediatrician; statements were admitted under a residual hearsay exception rather than under a firmly rooted exception).
15. 541 U.S. 36 (2004).
16. 541 U.S. at 60–61.
17. 541 U.S. at 63.
18. 541 U.S. at 68–69.
19. 541 U.S. at 54, 59.
20. 541 U.S. at 51–2 (internal quotation marks and citations omitted), quoted with approval in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309–10 (2009).
21. 541 U.S. at 68.
22. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 307, 309, 329 (2009).
23. Bullcoming v. New Mexico, 564 U.S. 647, 661–62 (2011).
24. 567 U.S. 50 (2012).
25. See, e.g., Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) (Justice Thomas concurring).
26. Giles v. California, 128 S. Ct. 2678, 2682, 2683 (2008).
27. 128 S. Ct. at 2683.
28. 128 S. Ct. at 2686.
29. 547 U.S. 813 (2006).
30. 547 U.S. at 822.
31. 547 U.S. at 828–29. Thus, where police responding to a domestic violence report interrogated a woman in the living room while her husband was being questioned in the kitchen, there was no present threat to the woman, so such information as was solicited was testimonial. Id. at 830 (facts of Hammon v. Indiana, considered together with Davis .)
32. 562 U.S. 344 (2011). Justice Sotomayor wrote the majority opinion, joined by Chief Justice Roberts and Justices Kennedy, Breyer, and Alito. Justice Thomas file an opinion concurring in the judgment, while Justices Scalia and Ginsburg filed dissenting opinions. Justice Kagan did not participate in the case.
33. Id. at 363.
34. Id. at 367.
35. See 547 U.S. at 362 n.9. The Court noted that many exceptions to hearsay rules rest on the belief that certain statements are made for a purpose other than use in prosecution, see, e.g., Fed. Rule Evid. 801(d)(2)(E) (statement by a co-conspirator during and in furtherance of the conspiracy); 803(4) (Statements for Purposes of Medical Diagnosis or Treatment); 803(6) (Records of Regularly Conducted Activity); 803(8) (Public Records and Reports); 803(9) (Records of Vital Statistics); 803(11) (Records of Religious Organizations); 803(12) (Marriage, Baptismal, and Similar Certificates); 803(13) (Family Records); and 804(b)(3) (Statement Against Interest).
36. See 135 S. Ct. 2173 (2015).
37. Id. at 2177.
38. Id. at 2181–82.
39. Id. at 2180–81.
40. 487 U.S. 1012 (1988).
41. On this latter point, the Court indicated that only individualized findings, rather than statutory presumption, could suffice to create an exception to the rule. 487 U.S. at 1021.
42. 487 U.S. at 1015, 1021.
43. 487 U.S. at 1018 n.2.
44. 497 U.S. 836 (1990).
45. Coy was decided by a 6-2 vote. Justice Scalia's opinion of the Court was joined by Justices Brennan, White, Marshall, Stevens, and O'Connor; Justice O'Connor's separate concurring opinion was joined by Justice White; Justice Blackmun's dissenting opinion was joined by Chief Justice Rehnquist, and Justice Kennedy did not participate. In Craig, a 5-4 decision, Justice O'Connor's opinion of the Court was joined by the two Coy dissenters and by Justices White and Kennedy. Justice Scalia's dissent was joined by Justices Brennan, Marshall, and Stevens.
46. 497 U.S. at 849.
47. 497 U.S. at 850. Dissenting Justice Scalia objected that face-to-face confrontation is not a preference 'reflected' by the Confrontation Clause [but rather] a constitutional right unqualifiedly guaranteed and that the Court has applied 'interest-balancing' analysis where the text of the Constitution simply does not permit it. Id. at 863, 870.
48. 497 U.S. at 855.
49. 497 U.S. at 857.
50. 497 U.S. at 855.
51. Kentucky v. Stincer, 482 U.S. 730, 744 (1987).
52. Michigan v. Lucas, 500 U.S. 145 (1991).
53. United States v. Cruikshank, 92 U.S. 542, 544, 558 (1875); United States v. Simmons, 96 U.S. 360 (1877); Bartell v. United States, 227 U.S. 427 (1913); Burton v. United States, 202 U.S. 344 (1906).
54. Potter v. United States, 155 U.S. 438, 444 (1894).
55. United States v. Carll, 105 U.S. 611 (1881).
56. United States v. Cook, 84 U.S. (17 Wall.) 168, 174 (1872).
57. Rosen v. United States, 161 U.S. 29, 40 (1896).
58. United States v. Van Duzee, 140 U.S. 169, 173 (1891).
59. In re Oliver, 333 U.S. 257, 273 (1948); Cole v. Arkansas, 333 U.S. 196, 201 (1948); Rabe v. Washington, 405 U.S. 313 (1972).