What Machines Can Teach Us about "Confrontation"

Authors

Andrea Roth

Abstract

In this short Article, I argue that treating non-human conveyances of information-and other forms of evidence that cannot be cross-examined-as beyond the Confrontation Clause is unsatisfactory as a matter of text, history, logic, and principle. Instead, all of these clues lead to one conclusion: the right of confrontation is a right not only to physical presence of certain human witnesses to facilitate demeanor review and questioning, but to a meaningful opportunity to scrutinize the government's proof, whatever its form.⁸ That right would include out-of-court discovery of critical contextual information about the evidence, whether or not exculpatory, and a right to impeach, or attack, the evidence before the factfinder. As I discuss more comprehensively in other works in progress, our cross-examination-centric confrontation and evidence doctrine has more to do with the post-Founding ascendancy of lawyers, John Henry Wigmore's influential 1903 treatise, and path dependency than with any principled reason to interpret "confrontation" as synonymous with cross-examination.⁹

First Page

210

Recommended Citation

Andrea Roth, What Machines Can Teach Us about "Confrontation", 60 Duq. L. Rev. 210 (2022).
Available at: https://dsc.duq.edu/dlr/vol60/iss2/3