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U.S. Supreme Court

  1. The Sixth Amendment’s Confrontation Clause provides that, “in all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.” We have held that this bedrock procedural guarantee applies to both federal and state prosecutions. Pointer v. Texas, 380 U.S. 400, 406 (1965). As noted above, Roberts says that an unavailable witness’s out-of-court statement may be admitted so long as it has adequate indicia of reliability–i.e., falls within a “firmly rooted hearsay exception” or bears “particularized guarantees of trustworthiness.” 448 U.S., at 66. Petitioner argues that this test strays from the original meaning of the Confrontation Clause and urges us to reconsider it.
    1. The Constitution’s text does not alone resolve this case. One could plausibly read “witnesses against” a defendant to mean those who actually testify at trial, cf. Woodsides v. State, 3 Miss. 655, 664—665 (1837), those whose statements are offered at trial, see 3 J. Wigmore, Evidence §1397, p. 104 (2d ed. 1923) (hereinafter Wigmore), or something in-between, see infra, at 15—16. We must therefore turn to the historical background of the Clause to understand its meaning.

      The right to confront one’s accusers is a concept that dates back to Roman times. See Coy v. Iowa, 487 U.S. 1012, 1015 (1988); Herrmann & Speer, Facing the Accuser: Ancient and Medieval Precursors of the Confrontation Clause, 34 Va. J. Int’l L. 481 (1994). The founding generation’s immediate source of the concept, however, was the common law. English common law has long differed from continental civil law in regard to the manner in which witnesses give testimony in criminal trials. The common-law tradition is one of live testimony in court subject to adversarial testing, while the civil law condones examination in private by judicial officers. See 3 W. Blackstone, Commentaries on the Laws of England 373—374 (1768).

      Nonetheless, England at times adopted elements of the civil-law practice. Justices of the peace or other officials examined suspects and witnesses before trial. These examinations were sometimes read in court in lieu of live testimony, a practice that “occasioned frequent demands by the prisoner to have his ‘accusers,’ i.e. the witnesses against him, brought before him face to face.” 1 J. Stephen, History of the Criminal Law of England 326 (1883). In some cases, these demands were refused. See 9 W. Holdsworth, History of English Law 216—217, 228 (3d ed. 1944); e.g., Raleigh’s Case, 2 How. St. Tr. 1, 15—16, 24 (1603); Throckmorton’s Case, 1 How. St. Tr. 869, 875—876 (1554); cf. Lilburn’s Case, 3 How. St. Tr. 1315, 1318—1322, 1329 (Star Chamber 1637).

      Pretrial examinations became routine under two statutes passed during the reign of Queen Mary in the 16th century, 1 & 2 Phil. & M., c. 13 (1554), and 2 & 3 id., c. 10 (1555). These Marian bail and committal statutes required justices of the peace to examine suspects and witnesses in felony cases and to certify the results to the court. It is doubtful that the original purpose of the examinations was to produce evidence admissible at trial. See J. Langbein, Prosecuting Crime in the Renaissance 21—34 (1974). Whatever the original purpose, however, they came to be used as evidence in some cases, see 2 M. Hale, Pleas of the Crown 284 (1736), resulting in an adoption of continental procedure. See 4 Holdsworth, supra, at 528—530.

      The most notorious instances of civil-law examination occurred in the great political trials of the 16th and 17th centuries. One such was the 1603 trial of Sir Walter Raleigh for treason. Lord Cobham, Raleigh’s alleged accomplice, had implicated him in an examination before the Privy Council and in a letter. At Raleigh’s trial, these were read to the jury. Raleigh argued that Cobham had lied to save himself: “Cobham is absolutely in the King’s mercy; to excuse me cannot avail him; by accusing me he may hope for favour.” 1 D. Jardine, Criminal Trials 435 (1832). Suspecting that Cobham would recant, Raleigh demanded that the judges call him to appear, arguing that “[t]he Proof of the Common Law is by witness and jury: let Cobham be here, let him speak it. Call my accuser before my face … .” 2 How. St. Tr., at 15—16. The judges refused, id., at 24, and, despite Raleigh’s protestations that he was being tried “by the Spanish Inquisition,” id., at 15, the jury convicted, and Raleigh was sentenced to death.

      One of Raleigh’s trial judges later lamented that “ ‘the justice of England has never been so degraded and injured as by the condemnation of Sir Walter Raleigh.’ ” 1 Jardine, supra, at 520. Through a series of statutory and judicial reforms, English law developed a right of confrontation that limited these abuses. For example, treason statutes required witnesses to confront the accused “face to face” at his arraignment. E.g., 13 Car. 2, c. 1, §5 (1661); see 1 Hale, supra, at 306. Courts, meanwhile, developed relatively strict rules of unavailability, admitting examinations only if the witness was demonstrably unable to testify in person. See Lord Morley’s Case, 6 How. St. Tr. 769, 770—771 (H. L. 1666); 2 Hale, supra, at 284; 1 Stephen, supra, at 358. Several authorities also stated that a suspect’s confession could be admitted only against himself, and not against others he implicated. See 2 W. Hawkins, Pleas of the Crown c. 46, §3, pp. 603—604 (T. Leach 6th ed. 1787); 1 Hale, supra, at 585, n. (k); 1 G. Gilbert, Evidence 216 (C. Lofft ed. 1791); cf. Tong’s Case, Kel. J. 17, 18, 84 Eng. Rep. 1061, 1062 (1662) (treason). But see King v. Westbeer, 1 Leach 12, 168 Eng. Rep. 108, 109 (1739).

      One recurring question was whether the admissibility of an unavailable witness’s pretrial examination depended on whether the defendant had had an opportunity to cross-examine him. In 1696, the Court of King’s Bench answered this question in the affirmative, in the widely reported misdemeanor libel case of King v. Paine, 5 Mod. 163, 87 Eng. Rep. 584. The court ruled that, even though a witness was dead, his examination was not admissible where “the defendant not being present when [it was] taken before the mayor … had lost the benefit of a cross-examination.” Id., at 165, 87 Eng. Rep., at 585. The question was also debated at length during the infamous proceedings against Sir John Fenwick on a bill of attainder. Fenwick’s counsel objected to admitting the examination of a witness who had been spirited away, on the ground that Fenwick had had no opportunity to cross-examine. See Fenwick’s Case, 13 How. St. Tr. 537, 591—592 (H. C. 1696) (Powys) (“[T]hat which they would offer is something that Mr. Goodman hath sworn when he was examined … ; sir J. F. not being present or privy, and no opportunity given to cross-examine the person; and I conceive that cannot be offered as evidence …”); id., at 592 (Shower) (“No deposition of a person can be read, though beyond sea, unless in cases where the party it is to be read against was privy to the examination, and might have cross-examined him … . [O]ur constitution is, that the person shall see his accuser”). The examination was nonetheless admitted on a closely divided vote after several of those present opined that the common-law rules of procedure did not apply to parliamentary attainder proceedings–one speaker even admitting that the evidence would normally be inadmissible. See id., at 603—604 (Williamson); id., at 604—605 (Chancellor of the Exchequer); id., at 607; 3 Wigmore §1364, at 22—23, n. 54. Fenwick was condemned, but the proceedings “must have burned into the general consciousness the vital importance of the rule securing the right of cross-examination.” Id., §1364, at 22; cf. Carmell v. Texas, 529 U.S. 513, 526—530 (2000).

      Paine had settled the rule requiring a prior opportunity for cross-examination as a matter of common law, but some doubts remained over whether the Marian statutes prescribed an exception to it in felony cases. The statutes did not identify the circumstances under which examinations were admissible, see 1 & 2 Phil. & M., c. 13 (1554); 2 & 3 id., c. 10 (1555), and some inferred that no prior opportunity for cross-examination was required. See Westbeer, supra, at 12, 168 Eng. Rep., at 109; compare Fenwick’s Case, 13 How. St. Tr., at 596 (Sloane), with id., at 602 (Musgrave). Many who expressed this view acknowledged that it meant the statutes were in derogation of the common law. See King v. Eriswell, 3 T. R. 707, 710, 100 Eng. Rep. 815, 817 (K. B. 1790) (Grose, J.) (dicta); id., at 722—723, 100 Eng. Rep., at 823—824 (Kenyon, C. J.) (same); compare 1 Gilbert, Evidence, at 215 (admissible only “by Force ‘of the Statute’ ”), with id., at 65. Nevertheless, by 1791 (the year the Sixth Amendment was ratified), courts were applying the cross-examination rule even to examinations by justices of the peace in felony cases. See King v. Dingler, 2 Leach 561, 562—563, 168 Eng. Rep. 383, 383—384 (1791); King v. Woodcock, 1 Leach 500, 502—504, 168 Eng. Rep. 352, 353 (1789); cf. King v. Radbourne, 1 Leach 457, 459—461, 168 Eng. Rep. 330, 331—332 (1787); 3 Wigmore §1364, at 23. Early 19th-century treatises confirm that requirement. See 1 T. Starkie, Evidence 95 (1826); 2 id., at 484—492; T. Peake, Evidence 63—64 (3d ed. 1808). When Parliament amended the statutes in 1848 to make the requirement explicit, see 11 & 12 Vict., c. 42, §17, the change merely “introduced in terms” what was already afforded the defendant “by the equitable construction of the law.” Queen v. Beeston, 29 Eng. L. & Eq. R. 527, 529 (Ct. Crim. App. 1854) (Jervis, C. J.).[fn2]