Page:United States Reports 502 OCT. TERM 1991.pdf/517

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Cite as: 502 U. S. 346 (1992)

359

Opinion of Thomas, J.

to be confronted with the witnesses against him. . . .” U. S. Const., Amdt. 6. It is plain that the critical phrase within the Clause for purposes of this case is “witnesses against him.” Any attempt at unraveling and understanding the relationship between the Clause and the hearsay rules must begin with an analysis of the meaning of that phrase. Unfortunately, in recent cases in this area, the Court has assumed that all hearsay declarants are “witnesses against” a defendant within the meaning of the Clause, see, e. g., Ohio v. Roberts, 448 U. S. 56 (1980); Lee v. Illinois, 476 U. S. 530 (1986); Idaho v. Wright, 497 U. S. 805 (1990), an assumption that is neither warranted nor supported by the history or text of the Confrontation Clause. There is virtually no evidence of what the drafters of the Confrontation Clause intended it to mean. See California v. Green, 399 U. S. 149, 176, n. 8 (1970) (Harlan, J., concurring); Dutton v. Evans, 400 U. S. 74, 95 (1970) (Harlan, J., concurring in result); Baker, The Right to Confrontation, The Hearsay Rules, and Due Process—A Proposal for Determining When Hearsay May be Used in Criminal Trials, 6 Conn. L. Rev. 529, 532 (1974). The strictest reading would be to construe the phrase “witnesses against him” to confer on a defendant the right to confront and cross-examine only those witnesses who actually appear and testify at trial. This was Wigmore’s view: “The net result, then, under the constitutional rule, is that, so far as testimony is required under the hearsay rule to be taken infrajudicially, it shall be taken in a certain way, namely, subject to cross-examination—not secretly or ex parte away from the accused. The Constitution does not prescribe what kinds of testimonial statements (dying declarations or the like) shall be given infrajudicially—this depends on the law of evidence for the time being—but only what mode of procedure shall be followed—i. e., a cross-examining procedure—in the case of such testimony as is required by the ordinary law