The Confrontation Clause & State Action

Abstract

The Sixth Amendment’s Confrontation Clause works in conjunction with the right to counsel and trial by jury to protect the people against the government’s abuse of its prosecutorial monopoly. However, the history of the Court’s Confrontation Clause jurisprudence has not always focused on the Sixth Amendment’s goal of limiting government power and was treated as virtually synonymous with the hearsay rules. In Crawford v. Washington, the Court restored the Confrontation Clause to constitutional significance by correctly identifying it as a procedural guaranty that empowers the jury to evaluate the reliability of government witnesses through live testimony subject to cross-examination. Unfortunately, the Court’s exclusive focus on testimonial statements as a limitation on the right was misplaced from the beginning, and the multifactor “primary purpose” test for identifying a testimonial statement allows government actors to avoid having to produce live witnesses subject to cross-examination. This Article proposes to replace the testimonial statement and the “primary purpose” test with a “state action” test that focuses on the government’s role in the creation of the out-of-court statement and thereby prevents government efforts to avoid live testimony and cross-examination at trial. First, the Article explains that the Confrontation Clause must be understood within the context of the right to counsel and trial by jury to ensure that jurors—the people—evaluate the reliability of government witnesses through live testimony subject to cross-examination by the defense counsel. It then demonstrates that the “primary purpose” test results in too much judicial discretion and emboldens police and prosecutors to manipulate the creation of out of court statements that will not trigger the right of confrontation. As a result, it empowers judges, police, and prosecutors—the very government actors the Sixth Amendment seeks to control. Second, the Article describes the alternative “state action” test that focuseson the government’s role in the creation of the out-of-court statement. The “state action” test would simplify the Confrontation Clause analysis and improve the truth-finding function of criminal trials. Under this test, the analysis is focused on government involvement in the creation of the out of court statements and thereby prevents the “primary evil” at which it was originally directed—the government’s “use of ex-parte examination as evidence against the accused.” Finally, the Article applies the proposed state action test and demonstrates how it would eliminate judicial discretion in mixed-motive cases, prevent the admission of out-of-court statements made to undercover government agents, and require forensic experts working for the government to testify live subject to cross-examination. In short, it preserves the right of confrontation—the constitutionally mandated means of testing the reliability of government witnesses—in cases where the potential for government abuse exists.