In this essay, I first examine some of the strategic choices spawned by the Supreme Court's "microscopic" focus on reliability in confrontation-hearsay cases. Rather than promoting the value at the core of the Confrontation Clause-the adversarial testing of prosecution evidence-the Court's approach leads to choices that ignore that value. While the Court scrutinizes hearsay under the microscope of reliability, it leaves the parties free to ignore and even to avoid available opportunities for effective confrontation of the hearsay declarant. At the same time, the Court's constitutional definition of reliability-which it equates with "firmly rooted" hearsay exceptions -has encouraged prosecutors to offer, and trial courts to admit, an increasing variety of less reliable hearsay I argue for a different approach to hearsay and confrontation: an approach that promotes different strategic choices. The Confrontation Clause, I suggest, offers more than the "negative" right to exclude unreliable hearsay. It encompasses the "affirmative" right to subject prosecution evidence-including hearsay evidence-to a process of adversarial testing. And it may require prosecutors or courts to take affirmative steps before trial, where those steps are necessary to provide a defendant a fair opportunity to challenge hearsay admitted in evidence at trial. Such steps might include notice and discovery regarding the prosecution's hearsay evidence, ordering separate trials for codefendants where one has uttered hearsay statements inculpating another, depositions of hearsay declarants unable to testify at trial, and even use immunity for hearsay declarants who are unavailable to testify only because they invoke a Fifth Amendment privilege. If courts recognize and enforce these affirmative confrontation rights, then different strategic choices will emerge. Prosecutors must respect those rights or risk exclusion of hearsay. And defendants must assert those rights or risk waiving their objection to hearsay under the Confrontation Clause. The constitutional debate over hearsay will shift away from its current narrow focus on reliability and toward a broader concern with the adversarial right to test prosecution evidence. In sum, the confrontation debate will be about promoting confrontation, not about avoiding it.
John G. Douglass, Admissibility as Cause and Effect: Considering Affirmative Rights under the Confrontation Clause, 21Quinnipiac L. Rev. 1047 (2003).