The Confrontation Clause and Pretrial Hearings: A Due Process Solution

Despite the recent crop of Supreme Court cases addressing the Con-frontation Clause of the Sixth Amendment, many issues regarding the ap-plication of the Confrontation Clause remain unresolved. In this Note, the author articulates and analyzes one such lingering question: whether the Confrontation Clause applies to pretrial hearings, and if so, to what extent. After describing the relevant Supreme Court precedent—including the current state of Confrontation Clause jurisprudence—the author examines the various ways lower courts have interpreted and ap-plied that precedent in determining whether the Confrontation Clause applies prior to trial. The author then articulates three potential ap-proaches to applying the Confrontation Clause to pretrial hearings, yet ultimately concludes that the preferable means of reconciling Supreme Court precedent with the necessity of protecting criminal defendants’ confrontation rights prior to trial is to analyze such questions under a due process—rather than a Confrontation Clause—framework.

The full text of this Note is available to download as a PDF.