The Content of Confrontation

This piece comments on the state of the Supreme Court’s Confrontation Clause jurisprudence at the close of the October 2010 Term. The 2004 Crawford v. Washington decision established that criminal defendants have a Sixth Amendment right to cross examine witnesses whose testimonial out-of-court statements are introduced into evidence. The seemingly categorical quality of that precedent is called into question by the Court’s reasoning in Michigan v. Bryant. The Court appears to have come full circle since Crawford: Bryant suggests that an out-of-court statement is admissible even absent confrontation if a multi-factor balancing test verifies its reliability. That inquiry closely resembles the Ohio v. Roberts framework that Crawford purportedly overruled, and the Bryant decision leaves lower courts with an open-textured analysis once again. The Court has all but held that the Confrontation Clause applies if an out-of-court statement provides the sort of evidence that implicates the Confrontation Clause. One way out of that loop might be to look more closely at the content of the right to confrontation, which the Court equates with cross examination. Focusing on the undertheorized role of cross examination itself— including the extent to which it has any potential to ensure reliability— could clarify when the right applies and address open questions about what confrontation requires as well