The Right to Confrontation and Testimonial Pre-Trial Statements

The Right to Confrontation and Testimonial Pre-Trial Statements

Robert C. Phillips
DDA, Retired
August, 2019

There are few situations in life more unfair and frustrating than being accused of something that, whether or not true, may be detrimental to one’s career, personal relationships, or future in general, and then being denied the opportunity to confront the accuser.  In some cases, you might not even be told who your accuser is.  Self-serving denials of culpability tend to do little to offset the damage that can be done by such accusations.  Absent the opportunity to challenge the veracity of those accusations through a face-to-face verbal confrontation with the accuser, the truth or falsity of such accusations often become largely irrelevant.  The damage has been done.

            Such is the plight of the criminal defendant who, at trial, might be faced with incriminating evidence in the form of hearsay statements,[1] testified to by a witness who alleges that he or she heard the statements as they were uttered by another—the other person commonly referred to as the “declarant”—with the witness now testifying to what he or she heard come from the declarant’s mouth.  Even if the identity of that declarant is known, there is little to offset the inherent unfairness of not being allowed to confront the declarant and test before a trier of fact his or her recollection, credibility, motives, and/or the general accuracy of the information.

The Confrontation ....

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