Part I of this Article describes how the Court turned the Confrontation Clause into a rule excluding unreliable hearsay, culminating in the 1980 decision in Ohio v. Roberts, in which the Court set out the "general approach" that dominates confrontation-hearsay analysis today. Part II assesses the application of the Court's exclusionary rule in the two decades since Roberts, a period during which the Confrontation Clause largely has merged with, and disappeared into, the law of evidence, in the process losing its significance as an independent protection for the accused in an adversarial system. Part III argues that the Court's choice of an exclusionary rule as the tool for protecting the confrontation right has the practical effect of limiting the scope of that right, while preempting the use of any alternative means of protecting it. Part IV argues that both the text and the history of the Sixth Amendment support a different approach: not a rule excluding unreliable hearsay, but an affirmative right to "confront" hearsay, to impeach the hearsay declarant, and to challenge hearsay testimony through any reasonably available means. Fmally, Part V explores the scope and the practical application of that right to confront hearsay. That Part discusses a defendant's burdens and opportunities in creating a real, face-to-face confrontation when the declarant is available. It assesses the practical advantages and disadvantages of "virtual cross-examination," the process of impeaching an absent declarant. As a rule of admissibility, the Confrontation Clause today has little impact on criminal trials, despite the increasing use of hearsay. If the Clause is to retain a life independent of the law of evidence, then the Clause must reach beyond the question of admissibility. Instead of asking when the Confrontation Clause requires exclusion of otherwise admissible evidence, perhaps the better question is the one most often overlooked: "How can the defendant challenge hearsay?" By exploring creative answers to that question, courts may find in many cases that the old exclusionary rule simply becomes unnecessary. Exclusion of evidence might become the remedy of last resort, not the premise from which the entire debate begins.
John G. Douglass, Beyond Admissibility: Real Confrontation, Virtual Cross-Examination and the Right to Confront Hearsay, 67 Geo. Wash. L. Rev. 191 (1999).