I. Introduction . . . . . 1258
II. Refocusing Confrontation Analysis . . . . . 1259
III. The Meaning of Confrontation . . . . . 1264
IV. A Witness-Focused Doctrine . . . . . 1271
A. The Unavailability Requirement . . . . . 1274
B. Dying Declarations . . . . . 1277
C. Declarations Against Interest . . . . . 1278
D. Child Witnesses . . . . . 1280
V . Conclusion . . . . . 128

Clark, Sherman J

English

This Essay argues that the Confrontation Clause of the Sixth Amendment ought to be re-understood as primarily an accuser\u27s obligation rather than primarily as a defendant\u27s right. We demand that those who would perform this potentially dangerous, morally weighty, and symbolically loaded act-the act of accusation-be willing to do so face to face. We impose this requirement not only because out-of-court accusations are unreliable, though they may often be, but also in response to a deep, if inchoate, feeling that it is somehow beneath us inconsistent with our sense of who we want to be as a community-to allow witnesses against criminal defendants to  hide behind the shadow  when making an accusation.1 On this interpretation, requiring confrontation is a way of reminding ourselves that we are, or least want to see ourselves as, the kind of people who decline to countenance or abet what we see as the cowardly and ignoble practice of hidden accusation. This approach, though perhaps not mandated by the text or history of the Confrontation Clause, is at least as consistent with both as is the current analytical framework, which treats the right of confrontation as an appendage to the rule against hearsay

Clark, Sherman J.

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An Accuser-Obligation Approach to the Confrontation Clause

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https://repository.law.umich.edu/context/articles/article/3847/viewcontent/Clark_20Accuser_20Obligation_20.pdf

An Accuser-Obligation Approach to the Confrontation Clause

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DigitalCommons@University of Nebraska

University of Michigan School of Law