Generally, the right is to have a face-to-face confrontation with witnesses who are offering testimonial evidence against the accused in the form of cross-examination during a trial.
In 2004, the Supreme Court of the United States formulated a new test in Crawford v. Washington to determine whether the Confrontation Clause applies in a criminal case.
In noting the right's long history, the United States Supreme Court has cited Acts of the Apostles 25:16,[1] which reports the Roman governor Porcius Festus, discussing the proper treatment of his prisoner Paul: "It is not the manner of the Romans to deliver any man up to die before the accused has met his accusers face-to-face, and has been given a chance to defend himself against the charges."
[2] In 2004, in Crawford v. Washington, the Supreme Court of the United States significantly redefined the application of the Sixth Amendment's right to confrontation.
[4] Nonetheless, in Crawford, the Supreme Court explicitly declined to provide a "comprehensive" definition of "testimonial" evidence.
[5] The Crawford decision left the other basic components of the Confrontation Clause's applicability—the witness's availability and the scope of the cross examination—unchanged.
In Davis v. Washington and its companion case, Hammon v. Indiana, the Court undertook the task of defining testimonial hearsay:[6] Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.
The obvious may also occur, a witness may be intimidated, seriously injured, or murdered, and his prior statements then are usually not admissible even if it appears the defendant caused the nonappearance.
[8][9][not specific enough to verify] These programs frequently require the witness to leave his residence or even family so that he can be protected before the trial occurs.
[12] Examples of such biases include being on probation as a juvenile delinquent, even where the state normally considers such a status to be protected confidential information;[10] having charges dropped in exchange for testimony, despite a specific denial that dropping the charges had any effect on the testimony;[13] and shared allegiances of the victim and witness, including gang membership.
In Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), and Bullcoming v. New Mexico, 564 U.S. 647 (2011), the Court ruled that admitting a lab chemist's analysis into evidence, without having him testify, violated the Confrontation Clause.
[15][16] In Michigan v. Bryant, 562 U.S. 344 (2011), the Court ruled that the "primary purpose" of a shooting victim's statement as to who shot him, and the police's reason for questioning him, each had to be objectively determined.
[17] In Crawford, the Supreme Court noted that two exceptions to the common law right of confrontation were acknowledged at the time the constitution was written: forfeiture by wrongdoing and dying declarations.
[22] At least one scholar has argued that the Supreme Court's decision in Crawford v. Washington reopened the question of whether Confrontation Clause violations are subject to harmless error review.