Cross-Examination

The Supreme Court has also recognized that the guarantee of reasonable cross-examination of witnesses who appear in court can be of limited value when those witnesses simply repeat what some out-of-court declarant said at some previous time. It did not do Sir Walter Raleigh much good to be able to cross-examine the boat pilot, when the pilot could shed no light on the reliability of the unidentified Portuguese gentleman and could only repeat what he heard the gentleman say. The Court therefore has read the confrontation clause's reference to "witnesses" to include out-of-court declarants on whose extra-judicial statements the prosecution seeks to rely. This reading, at least in theory, might have paved the way to an entire body of constitutional evidentiary doctrine that paralleled the hearsay rule in its concern with the reliability of out-of-court statements, but put more of an emphasis on in-court confrontation. That has not occurred, however. The important move the Court made was to reason that, under the confrontation clause, physical confrontation and cross-examination are largely means to the more general end of assuring the reliability of evidence. And because the Court has seen well-established hearsay doctrine as serving this same end, it has generally found that the confrontation clause requires no more in the way of reliability or physical confrontation than does standard hearsay doctrine. If, for example, the circumstances under which an out-of-court statement was made are found to satisfy the requirements of the "dying declaration" hearsay exception, or those of the rule allowing statements "made for the purposes of medical diagnosis or treatment," the Court would allow a jury to consider it, without any separate inquiry into the reliability of the particular statement, or into why the party offering the statement failed to produce the out-of-court declarant for cross-examination.

Even where cross-examination is required by the confrontation clause, it does not necessarily have to be particularly effective in order for the clause to be satisfied (at least under recent interpretations). An opportunity to confront a witness ready and willing to answer questions will generally suffice. Thus, where the victim of an assault could testify to having previously identified the defendant as his attacker while in the hospital, but could not recall having seen his assailant or whether any of his hospital visitors had suggested that the defendant had committed the crime, the Court found it sufficient that defense counsel could inquire into such matters as the witness's bias, his eyesight, and his memory. "The weapons available to impugn the witness's statement when memory loss is asserted," the Court noted in United States v. Owens, 484 U.S. 554, 560 (1988), "will of course not always achieve success, but successful cross-examination is not the constitutional guarantee" (p. 560).

A criminal defendant may be found to have forfeited his confrontation clause right to challenge the introduction of an unavailable witness's out-of-court statements if the defendant had a hand in preventing that witness from appearance in court by, say, bribing the witness to stay away, threatening the witness, or having the witness murdered.