University of Southern California

(Re)Constitutionalizing Confrontation: Reexamining Unavailability and the Value of Live Testimony

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Note by Raymond LaMagna
From Volume 79, Number 6 (September, 2006)

The Sixth Amendment guarantees a criminal defendant the right “to be confronted with the witnesses against him.” Despite the sweeping tone of this declaration, the Confrontation Clause has been misunderstood, maligned, and misapplied by courts for the last century. At its core, confrontation reflects society’s notions of justice and procedural fairness. Confrontation developed under Roman law as a production requirement, unconnected to cross-examination. It was designed to ensure fair criminal procedure by requiring witnesses to testify live before both the accused and the trier of fact. In response to notorious abuses in England, where defendants were convicted without witnesses testifying live at trial, confrontation was included in the Bill of Rights by the Framers. But a mere century later, courts began to misconstrue the grant, sapping it of its intended meaning.

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