The Sixth Amendment of the Constitution guarantees that “in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him.” This means that all persons bearing witness against a defendant must be present at trial, or unavailable at trial AND previously have been subject to cross-examination.

The Supreme Court has decided a series of cases considering when the introduction of “hearsay” by a prosecution witness violates the Confrontation Clause. In all such cases, the witnesses does not show up at trial and the defendant’s lawyer does not have a chance to cross-examine him.

In Hammon v. Indiana 547 U.S. 813 (2006), the police arrived in response to a 9-1-1 call reporting domestic violence. The court held that written and oral statements made to the police by the victim in her house were testimonial in nature, and that the defendant’s Confrontation Clause rights were violated by virtue of the introduction of those out-of-court statements. In Michigan v. Bryant, No. 09-150 (2011), decided this term, the Supreme Court seemed to be much more permissive in letting damaging prosecution hearsay in. The court reasoned that the comments by a fatally wounded gunshot victim in response to police questioning were not elicited primarily to establish past facts that could be used in a criminal prosecution, but were elicited primarily to enable the police to respond to an ongoing emergency. The decision prompted dissents by Justices Ginsburg and Scalia. Justice Scalia accused the court of enaging in a reading of facts that was “transparently false.” In any event, the court makes clear that the analysis is factually specific. Michigan v. Bryant should be limited to its facts: a recent shooting, injured gunshot victim in public, and the killer still at large. Even the majority suggests that police interrogation following an incident of domestic violence is ordinarily covered by the Confrontation Clause.

Later this term the Supreme Court will decide an extremely important Confrontation Clause case: whether the testimony of a lab supervisor instead of the toxicologist who actually performed a forensic test violates the right of the defendant to cross-examine the witnesses against him.