Professor Friedman reminds us that we have other confrontation issues beyond the non-testifying witness concern.
Focus on Crawford-related issues should not obscure the fact that many significant Confrontation Clause questions concern the scope of the accused’s right to cross-examine a witness who actually testifies at trial. Adam Liptak of the New York Times has alerted me to an interesting decision issued yesterday by the Second Circuit in United States v. Treacy.
The Second Circuit held that the limitations on cross- examination were improper. It declared that
once a trial court has determined that the Government has made the required showing to overcome the journalists privilege and compel a reporter’s direct testimony, the trial court may not, consistent with the Sixth Amendment’s Confrontation Clause, thereafter employ the privilege to restrict the defendant’s cross-examination of the reporter to a greater degree than it would restrict such cross-examination in a case where no privilege was at issue.
That seems correct, or at least close to correct, to me. The case to bear in mind is Davis v. Alaska, 415 U.S. 308 (1974). There, the state had a general rule preventing the disclosure of a juvenile adjudication, but the Supreme Court held that this rule must give way to the confrontation right where the young witness’s history of trouble with the law gave him a possible motivation to point the finger for a theft to the accused.