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Counsel and Confrontation

By Todd E. Pettys. Full text here.

In a well-known series of decisions handed down over the past five years, the Supreme Court has firmly yoked its interpretation of the Confrontation Clause to Anglo-American common-law principles that were in place at the time of the Sixth Amendment’s ratification in 1791. Based on its understanding of those principles, the Court has held that an unavailable witness’s testimonial hearsay statements are inadmissible in a criminal case unless the defendant was given an opportunity to cross-examine the witness prior to trial. Despite all of the attention that the Court’s reappraisal of the Confrontation Clause has drawn, the most startling consequence of that reappraisal has almost entirely escaped notice. This Article contends that, under the common-law principles that the Confrontation Clause now incorporates, defendants are not entitled to an attorney’s assistance when interrogating adverse witnesses prior to trial. Warren Court precedent, holding counsel’s pretrial participation essential, is thus poised to join the ranks of other cases that have been pushed aside under the Court’s new reading of the Confrontation Clause. In certain circumstances, the Assistance of Counsel Clause and the Due Process Clauses will pick up the slack, guaranteeing defendants an attorney’s help when cross-examining witnesses prior to trial. In other instances, however, the Constitution today leaves unrepresented defendants responsible for cross-examining witnesses on their own.