The Sixth Amendment's Confrontation Clause

    The Sixth Amendment's Confrontation Clause protects criminal defendants with the right "o be confronted with the witness against him."  Sixth Amendment.  Typically, this right is recognized with cross-examination of a witness whose testimony is being used in the prosecution of a criminal defendant.  In February the Supreme Court further defined the clause with a 6-2 decision in Michigan v. Bryant, No. 09-150 (U.S. Feb. 28, 2011) (Sotomayor). 

     In Bryant, a wounded victim gave a statement to the police as to who shot him.  This testimony was later used to prosecute the criminal defendant Bryant.  Bryant argued that the testimony was hearsay, and should not have been allowed to enter evidence at trial.  The Supreme Court did not agree.  Justice Sotomayor wrote that distinction can be made between situations of ongoing emergency and investigation.  When the statement is presented with a primary purpose to aid police in an emergency situation the statement is non-testimonial, and thus admissible at trial without the requirement of cross-examining the witness.  This rule is especially significant when, as in Bryant, the victim has died.  However, when testimony is given during police investigation after the emergency has dispensed the primary purpose changes to prosecution of a criminal defendant.  Thus, the Confrontation Clause requires prosecutors to allow the cross-examination of their testimonial witnesses.