It is a fundamental principle of American criminal law that anyone accused of a crime has the right to confront and challenge any witness who has given testimony against the accused. In fact, the right of the accused to confront witnesses during a criminal trial is considered so important to our criminal justice system, that it was set down in writing as the Sixth Amendment to the Constitution.

The Sixth Amendment to the Constitution (1792) states that “… in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him…” This right usually refers to providing a defendant with the opportunity confront, via cross-examination, any witness offering testimony against the accused. The Fourteenth Amendment (1868) extends the right to confrontation to include the criminal courts of each state and not just the federal courts.

As the courts have interpreted both the federal and Texas constitutional law, the right of confrontation applies only to criminal proceedings and not to civil cases or administrative hearings.

The Confrontation Clause: In-court and Out-of-court Statements
There are two types of statements that may be introduced in a criminal trial: in-court and out-of-court statements. An in-court statement is typically made by a witness who is testifying under oath from the witness chair and such statements can be challenged on cross-examination. Since in-court statements made by a witness can be immediately challenged by the accused, questions regarding the admissibility of these statements are usually settled “on the spot.” The second type of statement, the out-of-court statement, is often challenged based on the “Hearsay Rule.”

The Hearsay Rule states that testimony in a criminal trial must arise from the direct knowledge of a witness and not from a situation where the witness is merely repeating what he or she was told by another party. The general line of reasoning leading to the Hearsay Rule can be summarized as follows:

  • A defendant, “D”, is on trial for a criminal offense
  • Witness “A” offers testimony against D that includes information that was given to A by a third party.
  • Since D has the right to confront a witness, and the accuracy of A’s source of information cannot be verified on cross-examination, A’s testimony must be excluded under the Hearsay Rule.

Exceptions and Exemptions to the Hearsay Rule
The United States Supreme Court has ruled that, in certain situations, some types of statements are generally exempt from the cross-examination requirement of the 6th Amendment provided that 1) the party who made the original statement is unavailable and/or cannot be located and 2) the defendant had an opportunity to cross-examine the party making that statement prior to the beginning of the trial.

As is the case in the federal courts, in the Texas courts many disputes regarding the Confrontation Clause have been related to the admissibility of hearsay testimony. In general, challenges in Texas courts related to exactly what constitutes hearsay evidence tend to rely on either Title 18 of the U.S. Code, “Crimes and Criminal Procedure,” or on rulings from other criminal cases at the state and federal level.

In a criminal trial, the accused has the constitutional right to confront and challenge any witnesses offering testimony that seeks to establish the accused’s guilt. If a witness offers testimony that is based on what that witness was told by another party, or based on information that cannot be subjected to challenge, the 6th Amendment’s Confrontation Clause will usually prevent this testimony from becoming evidence in a criminal trial.

6th Amendment challenges to the admissibility of testimony and other evidence during a criminal trial, or during an appeal of a previous criminal conviction, are usually very technical in nature and often depend on rulings handed down in other cases. Given this potential complexity, it is essential that the assistance of an experienced criminal attorney be sought when considering how the Confrontation Clause might apply to a given situation.