The Supreme Court treats the Confrontation Clause as a rule of evidence that excludes unreliable hearsay. But where the hearsay declarant is an accomplice who refuses to testify at defendant's trial, the Court's approach leads prosecutors and defendants to ignore real opportunities for confrontation, while they debate the reliability of hearsay. And even where the Court's doctrine excludes hearsay, it leads prosecutors to purchase the accomplice's testimony through a process that raises equally serious questions of reliability. Thus, the Court's approach promotes neither reliability nor confrontation. This Article advocates an approach that applies the Confrontation Clause to hearsay declarants in much the same way it applies to testifying witnesses. Rather than exclude unreliable hearsay, the Clause guarantees fair adversarial testing of hearsay. Prosecutors cannot introduce accomplice hearsay without using available means to bring about real confrontation. Defendants cannot rely on confrontation rights that they are not willing to exercise. And courts must take a harder look when accomplices assert a blanket right not to testify. Rather than pitting hearsay against confrontation, this approach embraces solutions which allow both hearsay and confrontation.

Document Type


Publication Date