Mr. Crawford Gets COVID: Courts’ Struggle to Preserve the Confrontation Clause During COVID and What It Teaches Us About the Underlying Rights
Elizabeth Bays
One of the things courts across the nation struggled with throughout the COVID-19
pandemic was the conflict between preserving defendants’ rights under the
Confrontation Clause of the Sixth Amendment and implementing the safest public
health measures. Measures like masking or virtual testimony recommended by
public health officials threatened to abridge defendants’ rights. This Note has two
primary contentions. First, it will argue that the wide variation in the ways courts
chose to resolve this tension revealed a fundamental issue in our Confrontation
Clause jurisprudence: Courts have never actually defined the underlying right. In
fact, this Note will argue, that the “confrontation right” is more appropriately
understood as a bundle of distinct rights which must be carefully prioritized.
Second, this Note will argue that the standards used to adopt these modifications
were insufficiently rigorous. It proposes, therefore, that it is time for the legislature
to intervene as they have in other situations involving modified confrontation, and
to provide courts with a structured procedure for authorizing modified witness testimony
during times of emergency.
