by SJ Clark · Cited by 60 — I. INTRODUCTION. This Essay argues that the Confrontation Clause of the Sixth. Amendment ought to be re-understood as primarily an accuser’s obli-.

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Nebraska Law Reviewˆ)3,,+-An Accuser-Obligation Approach to theConfrontation ClauseSherman J. Clark˘$˛&˙˜˚.)&&)˚˚#-#)()+%-“5#!#-˙&˛)”)(,.(&˜4#+-).!”+˜˛˛˜,˙0)&&˜!!#-)”)((#/˜+,#-˜˝+˙,%#(˛)&(˜(˙˛˛˜*-˜˜˝+˙,%˙˜/#˜.-“)+#2˜˚’#(#,-+˙-!#-)”)((#/˜+,#-˜˝+˙,%#(˛)&(˜˛)”˜(˚˜#-˙-#)(˘”˜+’˙&˙+%˜˝˜//˙#&˙˝-5#!#-˙&˛)”)(,.(&˜),COREMetadata, citation and similar papers at by UNL | Libraries

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Sherman J. Clark*An Accuser-Obligation Approach tothe Confrontation ClauseTABLE OF CONTENTSI. Introduction .. 1258II. Refocusing Confrontation Analysis 1259III. The Meaning of Confrontation . 1264IV. A Witness-Focused Doctrine 1271A. The Unavailability Requirement . 1274B. Dying Declarations .. 1277C. Declarations Against Interest . 1278D. Child W itnesses .. 1280V .Conclusion .. 1285I. INTRODUCTIONThis Essay argues that the Confrontation Clause of the SixthAmendment ought to be re-understood as primarily an accuser’s obli-gation rather than primarily as a defendant’s right. We demand thatthose who would perform this potentially dangerous, morally weighty,and symbolically loaded act-the act of accusation-be willing to do soface to face. We impose this requirement not only because out-of-courtaccusations are unreliable, though they may often be, but also in re-sponse to a deep, if inchoate, feeling that it is somehow beneath us-inconsistent with our sense of who we want to be as a community-toallow witnesses against criminal defendants to “hide behind theshadow” when making an accusation.’ On this interpretation, requir-ing confrontation is a way of reminding ourselves that we are, or leastwant to see ourselves as, the kind of people who decline to counte-nance or abet what we see as the cowardly and ignoble practice of hid-den accusation. This approach, though perhaps not mandated by thetext or history of the Confrontation Clause, is at least as consistent© Copyright held by the NEBRASKA LAW REVIEW.* Professor of Law, University of Michigan Law School.1. The phrase “hide behind the shadow” comes from Justice Scalia’s opinion in Coyv. Iowa, 487 U.S. 1012, 1017-18 (1988) (quoting remarks attributed to PresidentEisenhower). See infra note 22 and accompanying text.1258

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CONFRONTATION CLAUSEwith both as is the current analytical framework, which treats theright of confrontation as an appendage to the rule against hearsay.Viewing the Confrontation Clause in this way would not requirecourts to make dramatic changes in the application of the clause.Most cases, in fact, would come out the same way as under regnantcaselaw, with the re-interpretation simply providing a better andmore coherent explanation for current doctrine. An accuser-obligationmodel does, however, offer several benefits. First, it frees confronta-tion doctrine from its dependence on the reliability-based analysisgoverning the hearsay rule and provides the Confrontation Clausewith a separate rationale befitting its constitutional status. Hearsayanalysis focuses on whether testimony is sufficiently reliable; whilethe Confrontation Clause, on this reading, focuses on whether it isworthy of respect. Second, by providing a coherent and appealinggrounding for the confrontation requirement, an accuser-obligationapproach would allow for the reasoned and principled, rather than adhoc, development of the law in difficult and troubling areas, such asthe proper treatment of statements against interest and the testimonyof child witnesses. Finally, and at a more theoretical level, recogniz-ing that, under some circumstances, the meaning of confrontationmay be as significant as its consequences highlights the way in whichimportant legal traditions and principles can both reflect and consti-tute community identity and self-perception.II. REFOCUSING CONFRONTATION ANALYSISUnder the Sixth Amendment, a criminal defendant has the right”to be confronted with the witnesses against him.”2 The confrontationright has generally been understood as a right on the part of defend-ants to test the accuracy of trial evidence, and has long been equatedwith the right to cross-examination.3 This, in turn, has caused theConfrontation Clause to be treated as strongly analogous to the ruleagainst hearsay. The standard reading is that defendants are pro-tected from uncross-examined testimony for the same reason courtslimit the admissibility of out-of-court statements generally-reliabil-2. The full text of the Sixth Amendment provides:In all criminal prosecutions the accused shall enjoy the right to a speedyand public trial, by an impartial jury of the State and district whereinthe crime shall have been committed, which district shall have been pre-viously ascertained by law, and to be informed of the nature and cause ofthe accusation; to be confronted with the witnesses against him; to havecompulsory process for obtaining witnesses in his favor, and to have theassistance of counsel.U.S. CONST. amend. VI.3. Barber v. Page, 390 U.S. 719, 725 (1968) (“The right to confrontation is basicallya trial right. It includes both the opportunity to cross-examine and the occasionfor the jury to weigh the demeanor of the witness.”).200311259

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NEBRASKA LAW REVIEWity. In the words of the United States Supreme Court, “the Confronta-tion Clause’s very mission [is] to advance ‘the accuracy of the truth-determining process in criminal trials.”‘4 Or, more recently, “[tihecentral concern of the Confrontation Clause is to ensure the reliabilityof the evidence against a criminal defendant by subjecting it to rigor-ous testing in the context of an adversary proceeding before the trierof fact.”5This approach has produced a doctrine which is, to say the least,unsatisfactory, and under which the Confrontation Clause has becomelost in the arcana of the rule against hearsay. The details of the cur-rent doctrine are beyond the scope of this Essay, and have been well-documented by others.6 For present purposes the upshot is clearenough. Whether the introduction of an out-of-court statement satis-fies the requirements of the Confrontation Clause depends largely onwhether the statement fits within an exception to the hearsay rule.Even where the limits of the confrontation right do not map preciselythe contours of the hearsay rule, the analysis displays an extremelyhearsay-like emphasis on the reliability of the statement.7 No onelikes this state of affairs; no one thinks that it makes sense to let thetail wag the dog in this fashion. Justice Breyer, for example, concur-ring in Lilly v. Virginia, recognized that recent scholarship calls outfor a re-evaluation of the hearsay-driven approach to confrontation.8The doctrinal confusion, however, should not come as a surprise. Aslong as we assume that the Confrontation Clause serves the same pur-pose as the rule against hearsay, it will be difficult to avoid conflatingthe analyses.Untangling the doctrines depends, therefore, on unraveling the un-derlying rationales. That has proven difficult. Other than protectingdefendants from unreliable evidence, what ends are served by the4. Tennessee v. Street, 471 U.S. 409, 415 (1985) (quoting Dutton v. Evans, 400 U.S.74, 89 (1970)).5. Maryland v. Craig, 497 U.S. 836, 845 (1990).6. See Joshua C. Dickinson, The Confrontation Clause and the Hearsay Rule: TheCurrent State of a Failed Marriage in Need of a Quick Divorce, 33 CREIGHTON L.REV. 763 (2000); Richard D. Friedman, Confrontation: The Search for Basic Prin-ciples, 86 GEo. L.J. 1011 (1998); Charles R. Nesson & Yochai Benkler, Constitu-tional Hearsay: Requiring Foundational Testing and Corroboration Under theConfrontation Clause, 81 VA. L. REV. 149 (1995); Eileen A. Scallen, ConstitutionalDimensions of Hearsay Reform: Toward a Three-Dimensional ConfrontationClause, 76 MINN. L. REV. 623 (1992); Natalie Kijurna, Note, Lilly v. Virginia: TheConfrontation Clause and Hearsay-“Oh What a Tangled Web We Weave ,” 50DEPAUL L. REV. 1133 (2001).7. Out-of-court statements that do fall within an exception to the hearsay rule, butnot within a so-called “firmly rooted” exception, may still be admissible under theConfrontation Clause if they bear sufficient “indicia of reliability.” Ohio v. Rob-erts, 448 U.S. 56 (1980).8. Lilly v. Virginia, 527 U.S. 116, 140-43 (1999) (Breyer, J., concurring).1260[Vol. 81:1258

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CONFRONTATION CLAUSEConfrontation Clause? My colleague Richard Friedman has arguedthat reliability is not the raison d’etre for the clause. Instead, heclaims, “[t]he confrontation right, like the oath, is one of the funda-mental conditions governing the giving of testimony.”9 He has it ex-actly right I think, as far as he goes, but we need to go farther. Whyshould we see confrontation as a “fundamental condition” other thanto insure the reliability of testimony? Why, other than “to advance’the accuracy of the truth-determining process in criminal trials,”‘1omight we want to consider this requirement so important?It seems to me that this question can best be answered through asubtle but crucial shift in the way in which we understand the right-a shift from a defendant-focused to a witness-focused view of confron-tation. The Confrontation Clause should be understood not solely as aright enjoyed by criminal defendants, but also, even primarily, as anobligation imposed upon would-be witnesses. Confrontation is notonly something to which we are entitled once accused; it is somethingwe are required to do if we seek to act as accusers. From the defen-dant’s perspective, it is not so much a right to confront witnesses, as aright to require witnesses to confront you. We have decided that if oneis willing to play this central, crucial role in taking a man’s liberty,one ought also to be willing to look him in the eye and literally standbehind his accusation. More to the point, and recognizing the strongsense in which rules of criminal procedure are a form not only of self-regulation but also self-definition, we have decided that we want to bethe kind of people who stand face to face with those we would accuse.Let me be clear: the Confrontation Clause is about making suredefendants can cross-examine state witnesses and thereby put thestate’s evidence to the test. Everyone from Coke to Blackstone to Wig-more to the current United States Supreme Court has recognized thata key benefit of the confrontation right is that it aids in the search fortruth.”1 I might even go so far as to agree that the primary purpose of9. Richard D. Friedman & Bridget McCormack, Dial-In Testimony, 150 U. PA. L.REV. 1171, 1200 (2002); accord Richard D. Friedman, Confrontation: The Searchfor Basic Principles, 86 GEO. L. J. 1011 (1998). Friedman also made this point inan amicus brief he co-authored with Margaret Berger on behalf of the ACLU inLilly v. Virginia. Motion for Leave to File Brief Amici Curiae of the AmericanCivil Liberties Union and the ACLU of Virginia, In Support of Petitioner, Lilly(No. 98-5881).10. Tennessee v. Street, 471 U.S. 409, 415 (1985) (quoting Dutton v. Evans, 400 U.S.74, 89 (1970)).11. Blackstone, for example explained the confrontation right primarily in terms oftruth-finding:The open examination of witnesses viva voce, in the presence of all man-kind, is much more conducive to the clearing up of truth, than the pri-vate and secret examination taken down in writing before the officer, orhis clerk, in the ecclesiastical courts, and all others that have borrowedtheir practice from the civil law: where a witness may frequently depose12612003]

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NEBRASKA LAW REVIEWcriminal procedure in general is or ought to be to protect the innocentand insure the accuracy of verdicts. I recognize as well that the crimi-nal justice system might well serve other consequentialist aims be-sides those directly related to the case at hand and its outcomes-thedeterrence of police misconduct being a primary example.12 The ques-tion here is whether consequentialist aims provide a complete expla-that in private, which he will be ashamed to testify in a public and sol-emn tribunal. There an artful or careless scribe may make a witnessspeak what he never meant, by dressing up his depositions in his ownforms and language; but he is here at liberty to correct and explain hismeaning, if misunderstood, which he can never do after a written deposi-tion is once taken. Besides the occasional questions of the judge, thejury, and counsel, propounded to the witness on a sudden, will sift outthe truth much better than a formal set of interrogatories previouslypenned and settled: and the confronting of adverse witnesses is also an-other opportunity of obtaining a clear discovery, which can never be hadupon any other method of trial.3 WILLIAM BLACKSTONE, COMMENTARIES *373. Though even in this accuracy-based rationale, note how the phrase “ashamed to testify” hints at the ignominityof the thing.12. With regard to the Confrontation Clause in particular, Margaret Berger has ar-gued for a “prosecutorial restraint” model, which emphasizes the potential deter-rent function of the clause, an aim closely related to, but not synonymous withthe aim of preventing the introduction of false or inaccurate testimony. MargaretA. Berger, The Deconstitutionalization of the Confrontation Clause: A Proposalfor a Prosecutorial Restraint Model, 76 MINN. L. REV. 557 (1992). Similarly, Ei-leen Scallen has argued that deterring police misconduct should be understood asone of three “dimensions” of the Confrontation Clause. Eileen A. Scallen, Consti-tutional Dimensions of Hearsay Reform: Toward a Three-Dimensional Confronta-tion Clause, 76 MINN. L. REV. 623 (1992); see also Randolph N. Jonokait,Restoring the Confrontation Clause to the Sixth Amendment, 35 UCLA L. REV.557 (1988); Roger W. Kirst, The Procedural Dimension of Confrontation Doctrine,66 NEB. L. REV. 485 (1987). More generally, Wright and Graham recognize arange of possible purposes for the Confrontation Clause, understood as one aspectof a Sixth Amendment which as a whole serves to further various aspects of anadversarial criminal justice system:[1] to show the accused and the public that his conviction and punish-ment are based on provable harm to a fellow citizen rather than the po-litical needs of the state or the spite of a paranoid; [2] to provide theaccused with a neutral tribunal to decide the case rather than onepredisposed to find guilt through prior familiarity with the accuser orthe evidence; [3] to show the accuser and the accused that accusationsare taken seriously so they must not be made frivolously or defendedagainst with indifference; [4] to protect the accused and the grand jurorsfrom real or imagined abuses of grand jury secrecy; [5] to provide anincentive to prosecute crimes in the vicinage so that the accused willhave a jury familiar with the social context of the accuser and the accu-sation; [6] to make it difficult for the state to prosecute “thought crimes”that do not harm an accuser and can only be proved by torturing theaccused or her allies or by ransacking their homes for books and papersthat record their thoughts.30 CHARLES ALAN WRIGHT & KENNETH W. GRAHAM, JR., FEDERAL PRACTICE ANDPROCEDURE § 6341 (1997).1262[Vol. 81:1258

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NEBRASKA LAW REVIEWthe clause? In particular, what kinds of out-of-court statements oughtto be understood to offend the Confrontation Clause if admittedagainst a criminal defendant?Here again I think Friedman has it right, so far as he goes. Heproposes a categorical rule severed entirely from the reliability-basedconcerns that drive hearsay analysis. Instead, confrontation analysison Friedman’s view hinges on whether the statement in question is”testimonial,” with testimoniality of a statement depending upon theknowledge or intent of the person making it. 15 Having described con-frontation as a “fundamental condition” for the giving of testimony,the testimonial standard follows as a matter of course, and certainlyrepresents the correct analytical approach. The difficulty with Fried-man’s analysis, however, is that it lacks grounding. Why require con-frontation? Nor is this lacuna merely a matter of analyticalaesthetics. Without a rationale, the doctrine will continue to defy ra-tional application. For example, Friedman calls for a categorical ap-proach to the application of the rule, but it seems at least possible thatidentifying a particular set of meaning-based reasons for the rule willopen up the possibility of similarly grounded exceptions. In particu-lar, if the testimonial standard is rooted in an accuser-obligation ratio-nale, we might want to recognize exceptions for situations underwhich the accuser seems not to have tried to shirk this obligation.III. THE MEANING OF CONFRONTATIONWhat should we make of the broad language used by Justice Scaliawriting for a majority of the Court in Coy v. Iowa?16 In an opinionfinding it unconstitutional to allow child witnesses to testify from be-hind a screen, he noted that the Confrontation Clause “serves endsrelated both to appearances and to reality.”17 He opined that “there issomething deep in human nature that regards face to face confronta-tion between accused and accuser as ‘essential to a fair trial in a crimi-nal prosecution.”‘”s In an effort to flesh out this “something,” JusticeScalia ranged far afield, citing not just previous Supreme Court opin-ions but also The Bible, Shakespeare, and Dwight D. Eisenhower.19The quoted passage from The Bible is from the book of Acts: “[It is notthe manner of the Romans to deliver any man up to die before theaccused has met his accusers face to face, and has been given a chance15. Friedman, supra note 6, at 1042 (“Under this approach, a declarant should bedeemed to be acting as a witness when she makes a statement if she anticipatesthat the statement will be used in the prosecution or investigation of a crime.”)(emphasis omitted).16. 487 U.S. 1012 (1988).17. Id. at 1017.18. Id. (quoting Pointer v. Texas, 380 U.S. 400, 404 (1965)).19. Id. at 1015-18.1264[Vol. 81:1258

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CONFRONTATION CLAUSEto defend himself against the charges.”20 The Shakespeare quotationcomes from Richard II: “Then call them to our presence-face to face,and frowning brow to brow, ourselves will hear the accuser and theaccused freely speak.. .”21 The Eisenhower citation is worth quotingin full:In Abilene, he said, it was necessary to “[mleet anyone face to face with whomyou disagree. You could not sneak up on him from behind, or do any damageto him, without suffering the penalty of an outraged citizenry . In thiscountry, if someone dislikes you, or accuses you, he must come up in front. Hecannot hide behind the shadow.”22It would be a mistake to make too much out of Justice Scalia’s rhet-oric, given that it was hardly necessary to the decision in that case,and that the Court soon retreated from his broad reading of the con-frontation right.23 At the same time, it would be a mistake to relegateJustice Scalia’s remarks in Coy to the status of interesting but mis-guided dicta. I hesitate to speak with any confidence about what lies”deep in human nature,” but it does seem fair to say that there issomething intuitively appealing, at least within the context of Ameri-can legal and popular culture, about requiring face to face confronta-tion under many circumstances. Justice Scalia was on to something.In fact, I believe that he was on to very much the right something,except that he was examining it from the wrong perspective. He wasemphasizing the respect owed to the rights of the accused, whereas itseems to me that our intuition rests at least as much on the lack ofrespect we have for those who would hide from those they accuse.When chided by the dissent in Coy for his wide ranging set of cita-tions, Justice Scalia responded that he intended “merely to illustratethe meaning of ‘confrontation,’ and both the antiquity and currency ofthe human feeling that a criminal trial is not just unless one can con-front his accusers.”24 Note however, that this is a very different pointfrom that attributed to President Eisenhower. Eisenhower was not20. Acts 25:16.21. WILLIAM SHAKESPEARE, RICHARD II, act 1, sc. 1.22. Coy, 487 U.S. at 1017-18 (quoting a press release of remarks given to the B’naiB’rith Anti-Defamation League, November 23, 1953, quoted in Daniel H. Pollitt,The Right of Confrontation: Its History and Modern Dress, 8 J. PUB. L. 381(1959)).23. Just two years later, in Maryland v. Craig, 497 U.S. 836 (1990), the court held 5-4that it did not offend the confrontation right to allow a child witness to testify viaclosed-circuit television. That result in and of itself could have been defended ona number of grounds, including, I would suggest, grounds quite similar to thosesuggested by Justice Scalia in Coy. The Court, however, rooted its opinion in anaccuracy rationale, holding that face to face confrontation is not necessarily arequirement where the reliability of the testimony can be otherwise assured.Justice Scalia, joined by Justices Marshall, Brennan, and Stevens in dissent, didnot reiterate his musings about the meaning of the confrontation right, butmounted a series of textual arguments and arguments from precedent.24. Coy, 487 U.S. at 1018 n.2.2003]1265

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NEBRASKA LAW REVIEWtalking about the accused but about the accuser. He was not talkingabout the fairness of criminal trials, or even about the potential inac-curacy of a behind the back accusation, but about the ignobility of ac-cusing in such a fashion. The very language smacks of disdain for thewhispering back-stabber: “sneak up on him from behind hide be-hind the shadow.” And the consequence he highlights is not an unjus-tified conviction but an “outraged citizenry.”The language of the clause itself suggests a witness-centered ap-proach. The defendant’s right is not “to confront” but “to be confrontedwith” the witnesses against him. The witness is the one who must dothe confronting-who must not “hide” or “sneak.” My point is not thatgrammar should govern constitutional interpretation, but simply thatthe proposed interpretation is fully consistent with the language inwhich the right is grounded. Interestingly, another clause employinga similar grammatical structure is the one which directly precedes theConfrontation Clause and which provides that an accused has theright “to be informed of the nature and cause of the accusation.”25This right “to be informed of the charges” seems at first blush torequire no explanation. After all, what could be more central to a fairtrial than that the accused know what he is accused of doing? Uponreflection, however, the very obviousness of this right is itself a sourceof uncertainty as to the necessity for and provenance of the Informa-tion Clause. Was it really feared that people would be tried withoutbeing informed of what they were charged with? More to the point,could there be any doubt that the right to be thus informed would con-stitute a fundamental aspect of the due process protected by the FifthAmendment? Perhaps the Information Clause simply manifests anabundance of caution. On the other hand, perhaps the clause adds notto the function, but rather reinforces the meaning of that stretch ofSixth Amendment landscape. The state must inform and the witnessmust confront. The two together define the polar opposite of the sneakattack.The first step in fleshing out this intuition is to acknowledge theextent to which convicting a fellow citizen of a crime is and perhapswill always remain a deeply troubling act. By troubling, I do not meanwrong, or unjustified. We must, for good and adequate reasons, bewilling to punish, which means that we must be willing to judge. Butif we are thoughtful people, we will never take that task lightly-never consider it unproblematic that we, who but for the grace of Godmight have been in the shoes of he whom we now convict,.should sit injudgment.Further, attributing the sort of meaning I have suggested to theConfrontation Clause implies recognition that witnesses for the state25. U.S. CONST. amend. VI.1266[Vol. 81:1258

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CONFRONTATION CLAUSEplay a particular and particularly central role in the process throughwhich we judge and punish. Formally, it is possible to view state wit-nesses as mere sources of information, but in fact they are more.There is a sense in which those who are willing to accuse others-those who know that they are participating in securing a conviction-are not merely assisting the state. They are in some sense invokingthe assistance of the state in an effort to do this perhaps necessary butnecessarily troubling thing. As one early description of the confronta-tion right put it, an accuser “aims a deadly dart at [one’s] life andcharacter.”26 It would be disingenuous to deny that “witnessing,” atleast on behalf of the state in a criminal trial, has this stronglyperformative aspect. It is something one does, rather than simplysomething one says, and not merely in the sense that “communicatinginformation” is describable as an activity. Giving testimony against acriminal defendant (or, critically, making statements you hope will beused to that end) is not simply communication; it is accusation, convic-tion, the casting of a stone. And perhaps this is the sort of thing whichshould only be done by those who are in some sense willing to putthemselves on the line.Along these lines, the confrontation right might be best understoodin conjunction with the oath requirement. The oath plays a number ofroles in the trial process, including impressing upon the witness thesolemnity of the occasion and reminding the witness of the penaltiesfor perjury. It seems to me, however, that the oath also performs asubtly different function-that of requiring the witness to stand be-hind the account he is about to give. Think of the preacher who inter-rupts his own sermon to call out “Can I get a witness?” He is notsearching for someone who will confirm the factual accuracy of thestatement he has just made. Rather, he is asking for people to standup and say “Amen,” to stand behind his truth as their truth, to stakethemselves on the strength of his “testimony.” The oath taken by awitness in a criminal trial may similarly serve a way of requiring wit-nesses to put themselves on the line.The rhetorical history of confrontation illuminates this aspect ofaccusation. For example, the frequently cited New Testament passageabout the “way of the Romans” is not the first or only biblical referenceto the obligations imposed on those who would accuse their fellows.27In the Old Testament, immediately following the passage describing26. 1 ARTHUR BROWNE, A COMPENDIOUS VIEW OF THE CIVIL LAW AND THE LAW OFADMIRALTY 43-44 (2d ed. 1802) (stating that “in criminal prosecutions nothing cancompensate the accused for the refusal of liberty to meet the adversary face toface, and to confront the man who aims a deadly dart at his life and at his charac-ter .. “), quoted in 30 WRIGHT & GRAHAM, supra note 12.27. Acts 25:16 (“It is not the manner of the Romans to deliver any man up to diebefore the accused has met his accusers face to face, and has been given a chanceto defend himself against the charges.”), quoted in Coy, 487 U.S. at 1015-16.200311267

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