The Confrontation Clause and the Scope of the Unavailability Requirement

The confrontation clause is that language of the sixth amendment to the United States Constitution which provides, "[I]n all criminal prosecutions, the accused shall enjoy the right… to be confronted with the witnesses against him." Despite the seemingly absolute language of the confrontation clause, which would suggest that no hearsay evidence may be admitted against an accused in a criminal proceeding, its guarantee has been subject to exception. For example, when either a witness to an event or his testimony is shown to be unavailable, others will be allowed to testify as to the information which the declarant-witness has related about the event in issue. Cross-examination at trial is the most preferable means of satisfying the demands of the confrontation clause. Where necessary, however, less preferable evidence may be introduced.

In this example unavailability of the testimony of the witness may provide the requisite necessity. In a recent case, however, the United States Supreme Court was willing to allow admission of less preferable evidence without a showing of unavailability. As a result, the scope of the unavailability requirement with regard to the confrontation clause is presently unclear. Further complicating the matter is the principle that unavailability of a witness is often a requirement for the invocation of an exception to the hearsay rule, such as the admission of prior testimony.

The scope of the unavailability requirements for the purposes of the hearsay rule and the confrontation clause, although often similar, are not necessarily coextensive This article examines the unavailability requirement, it’s possible limitations, its possible expansion in various areas, and finally recommends that the requirement be broadly applied in criminal cases.