To date, the confrontation clause has posed an insoluble paradox for the Supreme Court. The clause declares: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." By its terms, the clause appears to give a criminal defendant an unequivocal right to confront and cross-examine his accusers. Reading the clause in this fashion would constitutionalize a clean "no hearsay" rule, a rule without exception that would bar the admission of hearsay accusations against criminal defendants. But a clean no-hearsay rule would exclude evidence that sensible judges and evidence scholars want factfinders to know about. Every hearsay exception purports to describe such a situation. Interpreting the confrontation clause to impose a clean no-hearsay rule at a constitutional level would wipe out all hearsay exceptions.
The Supreme Court has never been willing to take such a stringent view of the clause's requirement. Instead, the Court has decided that established exceptions to the hearsay rule--for example, dying declarations--should also be treated as exceptions to the constitutional con[chfrontation requirement. Once the Court recognizes hearsay exceptions as [chexceptions to the confrontation requirement, however, where is the stopping point, and what is the theory? Must the Court go all the way, accepting any exception to the hearsay rule as also an exception to the constitutional right of confrontation? This is an ugly result. The hearsay rule, together with its exceptions, is a mind-boggling hodge-podge, a "rule" with more than twenty-five exclusions and exceptions (including a catch-all), really a set of rules without a clear underlying standard, hence a rule that does not express a coherent constitutional principle. Equating the right of confrontation with hearsay law would give us a constitutional rule that epitomizes legal technicality, subordinates the Constitution to the rules of evidence, and lacks any clear bounds or coherent rationalization.
Both judges and commentators would dearly value a sensible, middle-ground interpretation of the confrontation clause, one that would dis[chtinguish confrontation from hearsay, leave hearsay law and its mess of [chexceptions to lower levels of common law elaboration, and reserve for the constitutional realm a general and sensible principle of justice to bound the outside limits of common law practice. But every attempt to find such a bounding principle has so far failed, ensnared in the tangle between confrontation and hearsay. Years of struggle with this problem by judges and evidence commentators have produced no satisfactory solution.
Your assignment, should you choose to accept it, is to find a satisfactory solution to the paradox.
The cases in this chapter particularly demonstrate that the meaning of the confrontation clause has puzzled and continues to puzzle the Supreme Court. As Justice Harlan said in California v. Green, "The Confrontation Clause comes to us on faded parchment." There are at least seven meanings that can be attributed to the clause, and it will be useful to consider which of these informs the cases or might retrospectively rationalize them:
(1) A rule of history: The clause endorses whatever procedure prevailed in 1789;
(2) A rule requiring that any witness who testifies against a defendant be subject to cross-examination by him;
(3) A rule requiring cross-examination of the declarant of any statement that is offered against an accused for the truth of the matter it asserts;
(4) A rule requiring that all statements offered against an accused be reliable to some foundational degree (with such reliability always attainable if the declarant is or has been subject to cross-examination);
(5) A rule of preference requiring that prosecutors produce the declarant if available but permitting hearsay if the declarant is not available;
(6) A rule of sufficiency requiring that uncross-examined statements not comprise too heavy a proportion of the totality of the evidence against the accused--a rule, for example, that an accused cannot be convicted on hearsay alone;
(7) A rule that operates at both the level of admissibility and the level of sufficiency, requiring, for example, admission according to a rational hearsay rule and sufficiency according to a rule that an accused cannot be convicted on hearsay alone.
Wigmore offers the following explanation of why hearsay exceptions are not unconstitutional, even though their effect is to deny a criminal defendant the opportunity to confront his accuser:
The theory of the hearsay rule ... is that the many possible sources of inaccuracy and untrustworthiness which may lie underneath the bare untested assertion of a witness can best be brought to light and exposed, if they exist, by the test of cross-examination. But this test or security may in a given instance be superfluous; it may be sufficiently clear, in that instance, that the statement offered is free enough from the risk of inaccuracy and untrustworthiness, so that the test of cross-examination would be a work of supererogation.
5 J. Wigmore, Evidence §1420, p.251 (J. Chadbourne rev. 1974).