Gradually Exploded: Confrontation vs. the Former Testimony Rule.

Observing live court testimony allows a jury to determine witness credibility. This is called demeanor evidence. Allowing the introduction of transcripts of prior testimony by a witness offends a defendant's right to confrontation guaranteed by the Sixth Amendment of the United States Constitution. Loss of demeanor evidence can heighten sensitivity surrounding the constitutional demands of unavailability and an opportunity for cross-examination.

But the loss of this evidence is discounted when dealing with the admissibility of prior testimony as long as a defendant was formerly afforded an opportunity to cross-examine. Demeanor evidence, however, is still treated as a non-essential component of constitutional confrontation. The very manner by which a witness delivers their testimony in a modern jury trial is thought to give a probable indication of whether he or she speaks honestly. The Supreme Court’s holding in Mattox v. United States overemphasized the importance of cross-examination and confrontation as a remedy for past prosecutorial abuse committed by the use of ex parte affidavits.

Instead, Mattox should have emphasized the open presentation of evidence demanded by the modern form of a jury trial. Live witness testimony serves several purposes. The most important of these is a jury’s ability to observe a witness’s demeanor while on the stand. Demeanor evidence can now be preserved, and jurors can better judge the effect of the words used by a witness by hearing or seeing how they were delivered.

The technology for preserving testimony has significantly advanced in recent years and the adequacy of the current two-part test for the use of former testimony should be re-evaluated.