In 1968, in Barber v. Page, the Supreme Court appeared to interpret the Confrontation Clause to require cross-examination at trial.30 In dictum addressing the scope of the Confrontation Clause, the Barber Court seemed to agree with the Mattox view that defendants could require prosecution witnesses "to stand face to face with the jury,"31 but this more expansive interpretation was short lived.
In Barber, defense counsel had been present at defendant's preliminary hearing, but (at the time) had represented both the defendant (Barber) and his codefendant (Woods). Obviously, when Woods testified at the hearing, defense counsel did not cross-examine his own client.32 As discussed further on, the Supreme Court held that the admission of Woods's preliminary hearing testimony violated Barber's confrontation rights because the prosecutor had not established that Woods was unavailable to testify at trial (noting that, at the time of trial, Woods was incarcerated in a nearby federal prison).33 However, in dictum discussing whether confrontation must occur at trial in front of the jury, the Barber Court commented as follows: "We would reach the same result on the facts of this case had petitioner's counsel actually cross-examined Woods at the preliminary hearing. 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."34 Cross-examination at the preliminary hearing would not have satisfied the Barber Court.35
Just two years later in California v. Green,36 the Court retreated from the Barber majority's suggestion that confrontation must occur during trial. The Green Court held that the defendant's Confrontation Clause rights were fully satisfied by the opportunity to cross-examine a prosecution witness during a pretrial hearing.37 Here, the Court was unconcerned that defense cross-examination had occurred only at the preliminary hearing, which provided no opportunity for the jury to assess the demeanor of the witness.
Barber v. Page, previously discussed, was also the Supreme Court's first exploration of witness unavailability.38 According to the Court, the Sixth Amendment burden on the prosecutor to establish that her witness is unavailable is greater than the burden under the evidence rules.39 Thus, "a witness is not 'unavailable' for purposes of the . . . confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial."40
Over the next three decades, the Supreme Court would repeatedly revisit the witness unavailability requirement, developing special rules for child victims in sex crimes cases41 and for statements that fit certain hearsay exceptions.42 However, the Court appeared to reject most or all of these special rules in Crawford v. Washington, when it held that "[t]estimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine."43As discussed in the following sections, more recently the Court has specifically addressed the Confrontation Clause implications of admission of out-of-court statements made by a child abuse victim.44
By 1980, in Ohio v. Roberts, the Confrontation Clause had become handmaiden to the rules of evidence.45 The Roberts Court held that confrontation and hearsay were overlapping and perhaps even duplicative protections noting that they share the same goal of "augment[ing] accuracy in the factfinding process by ensuring the defendant an effective means to test adverse evidence."46 According to the Court, this is because confrontation and hearsay "stem from the same roots"47 and "are generally designed to protect similar values."48 Under Roberts, if the prosecution proffers reliable out-of-court statements made by an unavailable witness, confrontation would not make the statement more reliable.49 Thus, the Roberts Court held that confrontation is satisfied whenever the prosecution-sponsored out-of-court statement either (1) fits within a "firmly rooted hearsay exception"50 or (2) has "particularized guarantees of trustworthiness."51 For the next quarter century, judges would use Roberts to prevent defendants from cross-examining countless prosecution witnesses because the witnesses' out-of-court statements were admitted under a hearsay exception or were deemed reliable.
For the past two decades, the Supreme Court has repeatedly discussed the potential constitutional significance of the formality of the prosecution proffered out-of-court statement. The first expansive discussion of formality appeared in Justice Thomas's concurring opinion in White v. Illinois.52
In White, the Court held that the Confrontation Clause was not violated by the admission of out-of-court statements from a four-year-old alleged sexual assault victim who was available but did not testify at trial.53 Justice Thomas (joined by Justice Scalia) initially conceded that "[t]here is virtually no evidence of what the drafters of the Confrontation Clause intended it to mean."54 According to Justice Thomas, although the "strictest reading" would limit confrontation to witnesses who testify at trial, such a reading would conflict with the history of confrontation at common law, which had long considered the defendant's right to confront a range of out-of-court statements.55 The United States (as amicus curiae) had argued "the Confrontation Clause should apply only to those persons who provide in-court testimony or the functional equivalent, such as affidavits, depositions, or confessions that are made in contemplation of legal proceedings."56 The two concurring justices agreed, noting that "the Confrontation Clause is implicated by extrajudicial statements only insofar as they are contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions."57 They also presciently anticipated that any confrontation standard "[a]ttempt[ing] to draw a line between statements made in contemplation of legal proceedings and those not so made would entangle the courts in a multitude of difficulties."58
In the century since Mattox, the Supreme Court has consistently held that confrontation guarantees the defendant the right to cross-examination through counsel, but not the right to fruitful or effective cross-examination. For example, in Delaware v. Fensterer,59 the Court clarified that the Confrontation Clause "includes no guarantee that every witness called by the prosecution will refrain from giving testimony that is marred by for-getfulness, confusion, or evasion."60 The defendant's right to confrontation is even satisfied by cross-examination of a prosecution expert witness who cannot recall the bases for his opinion because the defendant has been provided an "opportunity to probe and expose . . . [these] infirmities through cross-examination, . . . calling to the attention of the factfinder the reasons for giving scant weight to the witness' testimony."61
Fensterer was reaffirmed and expanded three years later in United States v. Owens,62 when the Court found the Confrontation Clause satisfied by cross-examination of a prosecution witness who remembered speaking to the Federal Bureau of Investigation, but had completely forgotten all of the...
