See also: BUSINESS RECORDS–The Confrontation Clause
CO-CONSPIRATOR STATEMENTS–The Confrontation Clause; CROSS-EXAMINATION; DEATH CERTIFICATES
; CONVICTIONS
HEARSAY § 6.  The Confontation Clause; IMPEACHMENT; INFORMANTS
MARITAL COMMUNICATIONS–Confidential Communications:  The Confrontation Clause
STATEMENTS AGAINST INTEREST–The Confrontation Clause
TAPE RECORDINGS; .

1.  Generally

The right of an accused to confront the witnesses against him is guaranteed by the Sixth Amendment to the Constitution{footnote}U.S. Const. Amend. VI ("in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him."){/footnote} and by similar provisions in state consitutions.{footnote}E.g., Cal. Const., art. I, § 15; Hawai’i Const. Art. I, § 14; Md. Decl.Of Rights Art. 21; Neb. Const. art. I, § 11; Okla. Const. Art. II, § 20; Tex. Const. art. I, § 10; Chapman v. State, 628 A.2d 676 (Md. 1993).
See also State v. Plant, 461 N.W.2d 253, 266 (Neb. 1990) (rights under state constitution coextensive with those under federal constitution).
But see Commonwealth v. Ameriault, 677 N.E.2d 652 (Mass. 1997) (construing rights under state confrontation clause, which explcitly provides for face to face confrontation, as broader than rights under federal constitution); Commonwealth v. Bergstrom, 524 N.E.2d 366 (Mass. 1988) (same).{/footnote} The Confrontation Clause of the Sixth Amendment is binding on the states by virtue of the fourteenth amendment.{footnote}Pointer v. Texas, 380 U.S. 400, 403 (1965).
State ex rel. Nicholas v. State, 520 So. 2d 377 (La. 1988).{/footnote}  The right to confrontation includes the right to meet the witnesses against him face-to-face at trial (§ 3) and to cross-examine those witnesses (See CROSS-EXAMINATION)

The right of confrontation only exists as to witnesses who give testimony at trial inculpatory of the defendant.{footnote}Ferrier v. Duckworth, 902 F.2d 545 (7th Cir. 1990) (hearsay which was not inculpatory did not violate confrontation clause);  United States v. Daly, 756 F.2d 1491 (5th Cir. 1985); United States v. Andrews, 765 F.2d 1491 (11th Cir. 1985) (no right to confront favorable witness).{/footnote}  The privilege is not absolute,{footnote}Coy v. Iowa, 487 U.S. 1012, 1020 (1988) (stating the Court has in the past recognized "that rights conferred by the Confrontation Clause are not absolute"); Chambers v. Mississippi, 410 U.S. 284, 295 (1973) (stating "the right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accomodate other legitimate interests in the criminal trial process"); Mattox v. United States, 156 U.S. 237, 243 (1895) (prior testimony of witnesses who died prior to second trial).
People v. Thurman, 787 P.2d 646 (Colo. 1990); State v. Chisolm, 777 P.2d 753 (Kan. 1989).{/footnote} but "must occasionally give way to considerations of public policy and the necessities of the case."{footnote}Mattox v. United States, 156 U.S. 237, 243 (1895) (prior testimony of witnesses who died prior to second trial).{/footnote} 

2.  Proceedings to Which Confrontation Clause Applies

The right to confrontation applies to depositions,{footnote}United States v. Benfield, 593 F.2d 815, 821 (8th Cir. 1979).
State v. Turner, 345 N.W.2d 552, 559 (Iowa Ct. App. 1983).{/footnote} but not to the voir dire of a witness for determining competency,{footnote}State v. Ritchey, 490 P.2d 558, 561 (Ariz. 1971).{/footnote} preliminary hearings,{footnote}State v. Conner,453 N.W.2d 617 (S.D. 1990).{/footnote} civil forfeiture proceedings,{footnote}United States v. Parcel of Real Property Known as 6109 Grubb Road, Millcreek Tp. Erie County, Pa., 886 F.2d 618 (3d Cir. 1989).{/footnote} or prison disciplinary proceedings.{footnote}Wolff v. McDonnell, 418 U.S. 539, 567-68 (1974).{/footnote} See also PRELIMINARY HEARINGS; SENTENCING–Hearsay.

3. Face-to-Face Confrontation of Witnesses

The right to confrontation includes the right of the accused to meet the witnesses against him face-to-face at trial.{footnote}Kirby v. United States, 174 U.S. 47, 55 (1899); Mattox v. United States, 156 U.S. 237, 244 (1895) (prior testimony of witnesses who died prior to second trial); United States v. Benfield, 593 F.2d 815, 817 (8th Cir. 1979) (defendant not in same room as witness).
Herbert v. Superior Court, 117 Cal. App. 3d 661, 665, 172 Cal. Rptr. 850, 851 (1981) (defendant and witness could not see each other during witness’ testimony); Topping v. People, 793 P.2d 1168 (Colo. 1990) (error to allow physician located out-of-state to testify by telephone as to opinion that victim was raped; found harmless error).{/footnote} This right is not absolute, however.{footnote}Maryland v. Craig, 497 U.S. 836, 850 (1990).
State v. Bonello, 554 A.2d 277 (Conn. 1989), cert. denied, 109 S.Ct. 2103, 104 L.Ed.2d 664, reh’g den., 109 S.Ct. 2103, 104 L.Ed.2d 612 (permitting videotaped testimony of child sexual assault victim); State v. Plant, 461 N.W.2d 253 (Neb. 1990) (child witness).
 Check State v. Lincoln, 789 P.2d 497, 71 Haw. 274 (1990).  Check State v. Chisolm, 777 P.2d 753 (Kan. 1989).  Check State v. Eaton, 769 P.2d 1157 (Kan. 1989).{/footnote}  In Maryland v. Craig, the United States Supreme Court upheld allowing a child witness who was the alleged victim of abuse by the defendant testify by closed-circuit television.  The Court held that the right of an accused to confront witnesses "may be satisfied absent a physical, face-to-face confrontation at trial [but] only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured."{footnote}497 U.S. at 850 (1990).{/footnote}  See also CHILDREN; INFORMANTS.

4.  Waiver

The doctrine of waiver applies to the defendant’s right to confront witnesses.{footnote}Snyder v. Massachusetts, 291 U.S. 97, 106 (1934) (right to confrontation may be waived by consent or misconduct); Diaz v. United States, 223 U.S. 442 (1912).{/footnote} The prosecution bears the burden of proving waiver by a preponderance of the evidence.{footnote}United States v. Houlihan, 92 F.3d 1271 (1st Cir. 1996); United States v. Aguiar, 975 F.2d 45 (2d Cir. 1992); United States v. Mastrangelo, 693 F.2d 269, 273 (2d Cir. 1982) (waiver by misconduct), cert. denied, 104 S. Ct. 2385 (1984); Steele v. Taylor, 684 F.2d 1193, 1201-02 (6th Cir. 1982) (holding that a defendant who silences a witness by exploiting an intimate relationship waives the right to confrontation), cert. denied, 460 U.S. 1053 (1983); United States v. Balano, 618 F.2d 624, 629 (10th Cir. 1979) (court must find waiver by preponderance of the evidence after hearing outside presence of jury; defendant waived his confrontation right by threatening witness’s life and bringing about the witness’s silence); United States v. White, 838 F. Supp. 618 (U.S.D.C. 1993).
State v. Gettings, 769 P.2d 25, 29 (Kan. 1989); State v. Sheppard, 484 A.2d 1330, 1347-1348 (N.J. Super. Ct. Law Div. 1984); State v. Frambs, 460 N.W.2d 811, 814 (Wis. Ct. App. 1990).
Contra United States v. Thevis, 665 F.2d 616, 631 (5th Cir.) (“clear and convincing” standard), cert. denied, 456 U.S. 1008 (1982).{/footnote}  A defendant waives the right to be present when an adverse witness is testifying if he fails to appear for trial,{footnote}Taylor v. Illinois, 414 U.S. 17 (1973) (defendant did not return to trial after lunch recess and judge, relying on Fed. R. Crim. P. 43, tried the defendant in absentia); Diaz v. United States, 223 U.S. 442, 455 (1912); Ah Fook Chang v. United States, 91 F.2d 805, 809 (9th Cir. 1937) (defendant can waive his right to be present at his trial by voluntarily not appearing at trial); United States v. Barracota, 45 F. Supp. 38, 38 (S.D.N.Y. 1942).
See also Fed. R. Crim. P. 43 (“In prosecutions for offenses not punishable by death, the defendant’s voluntary absence after the trial has been commenced in his presence shall not prevent continuing the trial to and including the return of the verdict.”){/footnote} or is so disruptive during the trial that he must be removed from the courtroom.{footnote}Illinois v. Allen, 397 U.S. 337, 343 (1970) (continuous disruptive behavior; use of vile and threatening language toward judge); Don v. Nix, 886 F.2d 203 (8th Cir. 1989); Moore v. Scurr, 494 F. Supp. 1042, 1045 (S.D. Iowa 1980), rev’d on other grounds, 647 F.2d 854 (8th Cir.), cert. denied, 454 U.S. 1098 (1981). {/footnote} A defendant also waives the right of confrontation if he causes a witness to not testify or become unavailable to testify at trial through his own misconduct{footnote}Snyder v. Massachusetts, 291 U.S. 97, 106 (1934) (right to confrontation may be waived by consent or misconduct); Motes v. United States, 178 U.S. 458, 471 (1900) (right to confrontation waived if witness is absent due to defendant’s "suggestion, procurement or act"); United States v. Houlihan, 92 F.3d 1271 (1st Cir. 1996); United States v. Potamitis, 739 F.2d 784 (2d Cir. 1984); United States v. Mastrangelo, 693 F.2d 269, 273 (2d Cir. 1982), cert. denied, 104 S. Ct. 2385 (1984); Steele v. Taylor, 684 F.2d 1193, 1201-02 (6th Cir. 1982) (defendant who silences a witness by exploiting an intimate relationship waives the right to confrontation), cert. denied, 460 U.S. 1053 (1983); United States v. Mayes, 512 F.2d 637, 648-51 (6th Cir.), cert. denied, 422 U.S. 1008 (1975); United States v. Carlson, 547 F.2d 1346, 1359-60 (8th Cir. 1976) (threatening witness), cert. denied, 431 U.S. 914 (1977); United States v. Balano, 618 F.2d 624, 629 (10th Cir. 1979) (court must find waiver by preponderance of the evidence after hearing outside presence of jury; defendant waived his confrontation right by threatening witness’s life and bringing about the witness’s silence).
See also Reynolds v. United States, 98 U.S. 145, 158 (1878) (right to confrontation waived by defendant’s refusal to disclose the witness’ whereabouts).{/footnote}  The defendant’s attorney may effectively waive his client’s confrontation rights by stipulating to facts.{footnote}United States v. Stephens, 609 F.2d 230 (5th Cir. 1980) (allowed so long as defendant does not object and stipulation is legitimate trial tactic).{/footnote} A defendant also waives the right of confrontation by pleading guilty.{footnote}Boykin v. Alabama, 395 U.S. 238, 243 n.5 (1969) (quoting McCarthy v. United States, 394 U.S. 459, 466 (1969)); McCarthy v. United States, 394 U.S. 459, 466 (1969).{/footnote}

5.  Appeal

Various types of confrontation clause violations have been held not to warrant automatic reversal, but instead to be subject to the harmless error rule.{footnote}Delaware v. Van Arsdall, 475 U.S. 673 (1986) (refusal to allow cross-examination to show bias); United States v. Toliver, 541 F.2d 958 (2d Cir. 1976).
Topping v. People, 793 P.2d 1168 (Colo. 1990) (error to allow physician located out-of-state to testify by telephone as to opinion that victim was raped; found harmless error).{/footnote} Such errors lead to reversal unless the error is found harmless beyond a reasonable doubt.{footnote}Schneble v. Florida, 405 U.S. 427 (1972).
State v. Balisbisana, 924 P.2d 1215 (Hawaii 1996) (violation of right of confrontation through limitation of cross-examination).
See also APPEAL—Prejudicial Versus Hamrless Error.{/footnote}  The five factors to be examined in determining whether any error was harmless are (1) the importance of the witness’ testimony for the prosecution’s case; (2) whether the testimony was cumulative; (3) the presence or absence of corroborating or contradictory evidence; (4) the extent of the cross-examination permitted; and (5) the overall strength of the prosecution’s case.{footnote}Delaware v. Van Arsdall, 475 U.S. 673 (1986).{/footnote}

Bibliography

Nesson & Benkler, Constitutional Hearsay: Requiring Foundational Testing and Corroboration Under the Confrontation Clause, 81 Va. L. Rev. 149 (1995).