Mark Spottswood


This Article examines and critiques the recent revival of the Sixth Amendment's Confrontation Clause as a means of improving the quality of criminal trials. The Clause is best interpreted as a tool that aims to reduce the likelihood of wrongful convictions by limiting the ability of prosecutors and witnesses to concoct believable but false stories without fear of their deception being uncovered through crossexamination. Unfortunately, modern doctrine has come unmoored from this foundation. Requiring confrontation of available prosecution fact witnesses serves a useful (if narrow) evidentiary function in that it provides a check against an unethical prosecutor who might otherwise prepare and present perjured, misleading, or incomplete substitutes for live testimony. It does not automatically follow that the Clause should also require suppression as a remedy whenever witnesses who make testimonial statements become unavailable as trial witnesses. Rather, the courts should only suppress unconfronted hearsay by an unavailable witness when the unavailability was caused by a deliberate choice on the part of that witness or the prosecutor. By contrast, when the unavailability occurs unintentionally, or as the result of a deliberate choice made by the defendant, suppression only serves to undermine the goals that the Clause is designed to promote.

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