The United States Constitution’s Confrontation Clause ensures the criminally accused a right “to be confronted with the witnesses against” them. Justice Sotomayor recently referred to this clause as “[o]ne of the bedrock constitutional protections afforded to criminal defendants.” However, this right faces a new and existential threat. Rapid developments in law enforcement technology are reshaping the evidence available for use against criminal defendants. When an AI or algorithmic system places an alleged perpetrator at the scene of the crime, or an automated forensic process produces a DNA report used to convict an alleged perpetrator, should this type of automated evidence invoke a right to confront? If so, how should confrontation be operationalized, and on what theoretical basis?
Determining the Confrontation Clause’s application to automated statements is both critically important and highly under-theorized. Existing work treating this issue has largely discussed the scope of the threat to confrontation, called for more scholarship in this area, suggested that technology might not make the types of statements that would implicate a confrontation right, or found that direct confrontation of the technology itself could be sufficient.
This Article takes a different approach and posits that human confrontation is required. The prosecution must produce a human on behalf of relevant machine statements or such statements are inadmissible. Drawing upon the dignity, technology, policing, and confrontation literatures, this Article offers several contributions. First, it uses automated forensics to show that certain technology generated statements should implicate confrontation. Second, it claims that for dignitary reasons, only cross-examination of live human witnesses can meet the Confrontation Clause. Third, it reframes automation’s challenge to confrontation as a “humans in the loop” problem. Finally, it proposes a “proximate witness approach” that permits a human to testify on behalf of a machine, identifies an open set of principles to guide courts as to who can be a sufficient proximate witness, notes possible supplemental approaches, and discusses certain broader implications of requiring human confrontation. Human confrontation could check the power of the prosecution, aid system legitimacy, and ultimately act as a form of technology regulation.
