NCJ Number
130075
Journal
Hastings Constitutional Law Quarterly Volume: 17 Issue: 2 Dated: (Winter 1990) Pages: 383-397
Date Published
1990
Length
15 pages
Annotation
Several recent United States Supreme Court decisions show both that the Court has applied a bifurcated approach to the Confrontation Clause of the sixth amendment and that this approach has major defects.
Abstract
The Confrontation Clause gives the accused persons the right to be confronted with the witnesses against them. A functional view of the clause is that it prevents prosecutorial misconduct and increases the reliability of guilty verdicts by requiring that certain evidence be subject to challenge in court before it can serve as the basis for a conviction. The formalistic view is that the clause merely creates specific rules for criminal trials and that these rules are unrelated to any policy. The Supreme Court has taken the formalistic view when the issue has been whether a defendant's confrontation of a witness at trial was constitutionally adequate. In contrast, it has taken the functional view when the issue has been whether confrontation at trial was constitutionally necessary. The Court has not acknowledged this bifurcated approach, and its formalistic decisions in particular create a bizarre pattern when compared to each other or the functional decisions. Footnotes