The Sixth Amendment's Confrontation Clause
It was made applicable to the States through the Fourteenth
In all criminal prosecutions, the accused shall enjoy the right
. . . to be confronted with the witnesses against him."
Read Literally would exclude all hearsay exceptions.
If one were to read this language literally, it would require,
on objection, the exclusion of any statement made by a declarant
not present at trial.
Confrontation Clauses ways to restrict the range of admissible
The Sixth Amendment establishes a
rule of necessity.
In the usual case (including cases where prior cross-examination
has occurred), the prosecution
must either produce, or
unavailability of, the
declarant whose statement it
wishes to use against the defendant.
The second aspect operates once a witness is shown to be
Reflecting its underlying purpose to augment accuracy in the
factfinding process by ensuring the defendant an effective means
to test adverse evidence.
The Clause countenances
[accepts] only hearsay marked with such trustworthiness
that "there is no material departure from the reason of the
His statement is
admissible ONLY IF
it bears adequate "indicia of reliability."
Reliability == Hearsay Exceptions == particularized guarantees
Reliability can be inferred without more in a case where the
evidence falls within a firmly rooted hearsay exception.
In other cases, the evidence must be excluded, at least absent a
showing of particularized guarantees of trustworthiness.
Whether Anita Isaacs' prior testimony at the preliminary hearing
bore sufficient "indicia of reliability? No.
Preliminary Hearing Statement
At the preliminary hearing, a youth named Porter
identified Green as a drug supplier.
When called to the stand at Green's trial,
however, Porter professed a lapse of
Offered Porters Preliminary Hearing Statements
Frustrated in its attempt to adduce live testimony, the
prosecution offered Porter's prior statements.
Admissible to read to jury
The trial judge ruled the evidence admissible, and substantial
portions of the preliminary hearing transcript were read to the
Mattox v. United States
Citing the established rule that prior trial testimony is
admissible upon retrial if the declarant becomes unavailable.
Court - Reasoning
Porter was under oath;
respondent was represented by counsel -- the same counsel in
fact who later represented him at the trial;
respondent had every opportunity to
cross-examine Porter as to his statement; and
The proceedings were conducted
before a judicial tribunal, equipped to provide a
judicial record of the hearings." 399 U.S., at 165.
- Opportunity to Cross-Examine Satisfies the Confrontation
The opportunity to cross-examine at the preliminary hearing --
even absent actual cross-examination -- satisfies the
The mere opportunity for face-to-face encounter [is] sufficient.
Holding - Rule
The mere opportunity to cross-examine rendered the prior
Nor need we decide whether de
minimis [so insignificant] questioning is sufficient,
for defense counsel in this case tested Anita's testimony with
the equivalent of significant cross-examination.
Defense Porter is distinguishable (Porter was available, Anita
Green is distinguishable on the ground that Anita Isaacs --
unlike the declarant Porter in Green -- was not personally
available for questioning at trial.
- This argument ignores the language and logic of Green:
would have been
admissible at trial even in Porter's absence if Porter had been
Defense Confrontation and indicia of reliability
Falls back on the general principles of confrontation.
The court must undertake a particularized search for indicia of
absence of face-to-face contact at trial,
presence of a new attorney, and
the lack of classic cross-examination
Prosecution Anita had every reason to lie
Anita had every reason to lie to avoid prosecution or parental
Her unknown whereabouts is explicable as an effort to avoid
punishment, perjury, or self-incrimination.
Given these facts, her prior testimony falls on the unreliable
side, and should have been excluded.
We perceive no reason to resolve the reliability issue
differently here than the Court did in Green.
"Since there was an adequate opportunity to cross-examine [the
witness], and counsel availed himself of that opportunity, the
transcript bore sufficient 'indicia of reliability' and afforded
'"the trier of fact a satisfactory basis for evaluating the
truth of the prior statement
Supreme Court of Ohio Reversed