Confrontation Clause Cases During the 1960s through 1990s

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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.

In 1965, the Supreme Court broke from its early doctrine limiting Confrontation Clause protections to federal court proceedings and held that the right to confrontation is “fundamental” and “made obligatory on the States by the Fourteenth Amendment.” 1 Alongside that pronouncement, and in the years immediately following, the Court’s opinions further discussed the relationship between the confrontation right and the bar on hearsay evidence.2 The Court seemingly associated the two concepts, concluding that a key purpose of the right to confrontation is to give criminal defendants “an opportunity to cross-examine the witnesses against him,” absent an applicable hearsay exception.3 In Pointer v. Texas,4 the Court rejected the admission of testimony from a prior preliminary hearing on confrontation grounds, because no exception to the hearsay rule applied, and the testimony was taken in circumstances insufficient to secure “an adequate opportunity to cross-examine” the witness through counsel.5 The Court further emphasized the importance of cross examination in satisfying the confrontation right in Douglas v. Alabama,6 concluding that the Confrontation Clause barred the admission of the confession of an alleged accomplice who invoked his Fifth Amendment right to avoid self-incrimination, leaving the defendant unable to “cross-examine [the witness] as to the alleged confession.” 7 Three years later, cross-examination was again integral to the Court’s Confrontation Clause analysis in Bruton v. United States.8 In Bruton, the Court concluded that the Confrontation Clause barred the admission of the confession of a non-testifying co-defendant in a joint jury trial, where that confession implicated another defendant.9 According to the Court, introduction of that confession added “substantial, perhaps even critical, weight to the Government’s case in a form not subject to cross-examination.” 10

In 1970, the Court again reexamined the relationship between the Confrontation Clause and the hearsay rule, holding that they “are generally designed to protect similar values,” but that the “overlap is [not] complete” and that the Confrontation Clause is more “than a codification of the rules of hearsay and their exceptions as they existed historically at common law.” 11 According to the Court, the Confrontation Clause may be violated even when the hearsay rule is not and, conversely, “evidence . . . admitted in violation of a long-established hearsay rule does not lead to the automatic conclusion that confrontation rights have been denied.” 12 Thus, in California v. Green,13 the Court held that the admission of prior statements made by a witness while in custody and in a preliminary hearing did not violate a defendant’s confrontation rights, even though the statements would have been hearsay in some jurisdictions.14 The Court reasoned that the witness was available for “full cross-examination at trial,” including for questioning into inconsistencies between his prior statement and “his present version of the events in question.” 15 Similarly, in Dutton v. Evans,16 a plurality of four Justices held that the admission of an out-of-court statement pursuant to Georgia’s coconspirator hearsay exception did not violate the Confrontation Clause, even though the same statement would have been inadmissible hearsay under the federal rules of evidence.17 The Court reasoned that the “limited contours” of the federal hearsay exception in conspiracy trials are not “required by the Sixth Amendment’s Confrontation Clause” but rather a product of the Court’s “rule-making power in the area of the federal law of evidence.” 18

Then, in its 1980 opinion Ohio v. Roberts, the Supreme Court again revisited the “relationship between the Confrontation Clause and the hearsay rule with its many exceptions.” 19 In Roberts, the Court explained that the Confrontation Clause “operates in two separate ways to restrict the range of admissible hearsay.” 20 First, “when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable.” 21 Second, if unavailable, “his statement is admissible only if it bears adequate ‘indicia of reliability.’” 22 Indicia of reliability, according to the Court, could “be inferred . . . in a case where the evidence falls within a firmly rooted hearsay exception.” 23 Otherwise, reliability would require “a showing of particularized guarantees of trustworthiness.” 24 The Court’s focus in Roberts on reliability or trustworthiness became the primary lens through which the Court examined Confrontation Clause challenges involving extrajudicial statements until 2004, when the Court again changed course.25

1: Pointer v. Texas, 380 U.S. 400, 403 (1965).
2: Hearsay is “a statement (either a verbal assertion or nonverbal assertive conduct), other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Hearsay, Black’s Law Dictionary (11th ed. 2019)
3: See Pointer, 380 U.S. at 406–07 (explaining that although the confrontation right generally requires cross-examination, there are recognized exceptions such as dying declarations and “testimony of a deceased witness who has testified at a former trial” ).
4: 380 U.S. 400, 403 (1965).
5: Id. at 407.
6: 380 U.S. 415 (1965).
7: Id. at 419–20; see also Pennsylvania v. Ritchie, 480 U.S. 39, 52 (1987) (plurality opinion) ( “The opinions of this Court show that the right to confrontation is a trial right, designed to prevent improper restrictions on the types of questions that defense counsel may ask during cross-examination.” ); Barber v. Page, 390 U.S. 719, 725 (1968) ( “The right to confrontation is basically a trial right. It includes both the opportunity to cross-examine and the occasion for the jury to weigh the demeanor of the witness.” ). The Court has given weight to the importance of cross-examination for confrontation purposes in a number of other opinions. See Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986) ( “By thus cutting off all questioning about an event that the State conceded had taken place and that a jury might reasonably have found furnished the witness a motive for favoring the prosecution in his testimony, the court’s ruling violated respondent’s rights secured by the Confrontation Clause.” ); Mancusi v. Stubbs, 408 U.S. 204, 216 (1972) ( “Since there was an adequate opportunity to cross-examine [the witness] at the first trial, and counsel . . . availed himself of that opportunity, the transcript of [the witness'] testimony in the first trial bore sufficient ‘indicia of reliability’ and afforded ‘the trier of fact a satisfactory basis for evaluating the truth of the prior statement.’” (quoting Dutton v. Evans, 400 U.S. 74, 89 (1970) (plurality opinion)); Smith v. State of Illinois, 390 U.S. 129, 131 (1968) (concluding that trial court’s refusal to permit defendant to cross-examine the “principal prosecution witness” on “either his name or where he lived” was “effectively to emasculate the right of cross-examination itself” ). Notably, the Supreme Court has also observed the importance of cross-examination in the context of Constitutional due process rights. See Chambers v. Mississippi, 410 U.S. 284, 302 (1973) (holding that a defendant’s due process rights had been violated where his ability to cross-examine witnesses on key points had been barred by state hearsay and common-law trial rules); In re Oliver, 333 U.S. 257, 259 (1948); Alford v. United States, 282 U.S. 687, 691 (1931) ( “Cross-examination of a witness is a matter of right.” ).
8: 391 U.S. 123 (1968).
9: Id. In a subsequent opinion, the Court held that Bruton applies retroactively. Roberts v. Russell, 392 U.S. 293, 293 (1968) (per curiam). Depending on the details, the Court has reached different outcomes on the extent to which redacted codefendant confessions violate Bruton. Compare Samia v. United States, No. 22-196, slip op. at 1-2 (U.S. Jun. 23, 2023) (holding that the Confrontation Clause does not bar “the admission of a nontestifying codefendant’s confession where (1) the confession has been modified to avoid directly identifying the nonconfessing codefendant and (2) the court offers a limiting instruction that jurors may consider the confession only with respect to the confessing codefendant.” ) and Richardson v. Marsh, 481 U.S. 200, 211 (1987) ( “We hold that the Confrontation Clause is not violated by the admission of a nontestifying codefendant’s confession with a proper limiting instruction when, as here, the confession is redacted to eliminate not only the defendant’s name, but any reference to his or her existence.” ), with Gray v. Maryland, 523 U.S. 185, 188 (1998) (holding that “Bruton’s protective rule” applied where the prosecution “redacted the codefendant’s confession by substituting for the defendant’s name in the confession a blank space or the word ‘deleted.’” ).
10: Bruton, 391 U.S. at 128 (emphasis added); see also Cruz v. New York, 481 U.S. 186, 193 (1987), abrogating Parker v. Randolph, 442 U.S. 62 (1979)( “We hold that, where a nontestifying codefendant’s confession incriminating the defendant is not directly admissible against the defendant” the “Confrontation Clause bars its admission at their joint trial, even if the jury is instructed not to consider it against the defendant, and even if the defendant’s own confession is admitted against him” ); Lee v. Illinois, 476 U.S. 530, 539 (1986) (concluding that “confession of an accomplice” “was presumptively unreliable and . . . did not bear sufficient independent ‘indicia of reliability’ to overcome that presumption” ); but see Tennessee v. Street, 471 U.S. 409, 410 (1985) (holding that admission of accomplice confession was permissible for “the nonhearsay purpose of rebutting respondent’s testimony that his own confession was coercively derived from the accomplice’s statement” ); Nelson v. O’Neil, 402 U.S. 622, 629–30 (1971) ( “We conclude that where a codefendant takes the stand in his own defense, denies making an alleged out-of-court statement implicating the defendant, and proceeds to testify favorably to the defendant concerning the underlying facts, the defendant has been denied no rights protected by the Sixth and Fourteenth Amendments.” ). In some cases, the Court concluded that Bruton violations amounted to harmless error where other evidence of guilt was overwhelming. See Schneble v. Fla., 405 U.S. 427, 432 (1972); Harrington v. California, 395 U.S. 250, 254 (1969). Under current doctrine, the confession of a non-testifying co-defendant “in a jury trial” may still be inadmissible on confrontation grounds in federal courts “if it implicates the defendant.” United States v. King, 910 F.3d 320, 328 (7th Cir. 2018). However, pursuant to subsequent Supreme Court doctrine, as a threshold matter the confession must be testimonial in nature before its admission implicates the Confrontation Clause. Crawford v. Washington, 541 U.S. 36, 51 (2004); accord United States v. Dale, 614 F.3d 942, 956 (8th Cir. 2010) (holding that the “out-of-court statement of a co-defendant made unknowingly to a government agent is not ‘testimonial’” and therefore not barred by the Confrontation Clause); United States v. Smalls, 605 F.3d 765, 768 n.2 (10th Cir. 2010) ( “[T]he Bruton rule, like the Confrontation Clause upon which it is premised, does not apply to nontestimonial hearsay statements.” ).
11: California v. Green, 399 U.S. 149, 155 (1970); see also Dutton, 400 U.S. at 80 ( “It is not argued, nor could it be, that the constitutional right to confrontation requires that no hearsay evidence can ever be introduced. That the two evidentiary rules are not identical must be readily conceded.” ).
12: Green, 399 U.S. at 156.
13: Id.
14: Id. at 164.
15: Id. at 164. The Court also observed that the witnesses’ preliminary hearing testimony would have been admissible on confrontation grounds even without “opportunity for confrontation at the subsequent trial.” Id. at 165. According to the Court, at the preliminary hearing the witness “was under oath” and the defendant “was represented by counsel-the same counsel in fact who later represented him at the trial.” Id. Thus, the Court noted that “respondent had every opportunity to cross-examine [witness] as to his statement; and the proceedings were conducted before a judicial tribunal, equipped to provide a judicial record of the hearings.” Id.
16: 400 U.S. at 74.
17: Id. at 81. The statement was made during the concealment stage of the conspiracy, which would place it beyond the co-conspirator exception in federal courts. Id. at 78–79, 81.
18: Id. at 82.
19: Ohio v. Roberts, 448 U.S. 56, 62 (1980), abrogated by Crawford v. Washington, 541 U.S. 36 (2004).
20: Id. at 65.
21: Id. at 66; but see United States v. Inadi, 475 U.S. 387, 394 (1986) ( “Roberts cannot fairly be read to stand for the radical proposition that no out-of-court statement can be introduced by the government without a showing that the declarant is unavailable.” ).
22: Id.
23: Roberts, 448 U.S. at 66; see also Bourjaily v. United States, 483 U.S. 171, 183 (1987) ( “We think that the co-conspirator exception to the hearsay rule is firmly enough rooted in our jurisprudence that, under this Court’s holding in Roberts, a court need not independently inquire into the reliability of such statements.” ).
24: Roberts, 448 U.S. at 66.
25: Amdt6.5.3.1 Admissibility of Testimonial Statements.