This Article examines the relationship between the Sixth Amendment right to confrontation in criminal prosecutions and the Fourteenth Amendment right to confrontation in formal parole, probation, and supervised release revocation proceedings. Although in most revocation hearings the Sixth Amendment Confrontation Clause presently has little-to-no influence over the Fourteenth Amendment due process right to confrontation, the jurisprudence for the due process right to confrontation in revocation proceedings must change to more closely mirror Sixth Amendment Confrontation Clause jurisprudence because of their entangled past, significant similarities between criminal prosecutions and revocation proceedings, and constitutional concerns.
Before analyzing this relationship, a quick introduction to the two main characters of this Article is in order. First, the Sixth Amendment Confrontation Clause provides a criminal defendant with a nearly absolute right to confront and cross-examine a court witness who made out-of-court testimonial statements against the defendant unless the witness is unavailable and the defendant had a prior opportunity to confrontation. Otherwise, prosecutors cannot introduce those testimonial statements in criminal prosecutions.
Second, the Fourteenth Amendment due process confrontation right provides a probationer, parolee, or supervised releasee with a limited right to confront and cross-examine out-of-court declarants in revocation proceedings. In revocation proceedings, the confrontation requirement is determined under various tests, which, among other factors, weigh the reliability of the hearsay evidence at issue.
Esther K. Hong, Friend or Foe: The Sixth Amendment Confrontation Clause in Post-Conviction Formal Revocation Proceedings, 66 SMU L. Rev. 227 (2013)