Abstract

After Crawford v. Washington, 541 U.S. 36, 42 (2004), face-to-face confrontation between accused and accuser is the constitutionally normative mode of presentation for testimonial evidence. Yet, eight years into the Crawford revolution, courts routinely hold that counsel can waive a defendant's confrontation rights without even discussing the matter with the defendant. Why? Because counsel, not client, has the authority to decide whether to confront and cross-examine government witnesses.

This Essay, written as part of the Texas Tech Sixth Amendment Symposium, explores this peculiar and perplexing rule. If confrontation is essential to a constitutionally valid criminal trial, how can defense counsel waive the confrontation right without the accused's consent? Does the right to counsel truly extinguish a defendant's right to demand confrontation?

In this Essay, I explain how the artificial fundamental rights doctrine has ceded confrontation control to counsel. Then, I consider and critique the jurisprudence addressing defendant claims about confrontation rights that were waived or forfeited by defense counsel. Along the way, I offer some observations about the implications of ceding confrontation control to counsel. I conclude by arguing that the right to confrontation best serves its purposes when defendants control the exercise of the right.

Publication Title

Texas Tech Law Review

Publication Date

2012

Document Type

Article

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