The Future of the Confrontation Clause: Semiautonomous and Autonomous Machine Witnesses

Brian Sites · 22 Vand. J. Ent. & Tech. 547

Abstract

How should the Confrontation Clause of the Sixth Amendment be interpreted as to machine witnesses? Courts across the country have resisted efforts to cross-examine the human agents who assist machines that generate data used in criminal trials. Such challenges under the Confrontation Clause have been rejected directly and in great number, and the rules of evidence are largely being read to not require thetestimony of those who have the best information about the machine’s use for the case at hand. This problem arises in an era of machine exceptionalism and widespread use. From increasingly sophisticated forensic lab tools to crime scene drones, these machines are growing in prevalence. Meanwhile, other machines that operate with little-to-no human assistance, such as surveillance cameras and wearables, are also on the rise. As new technologies creep further into numerous aspects of public and private space, human witnesses are less and less necessary to criminal trials. Increasingly, machines are created for the specific purpose of making assertions about reality in place of humans. Courts, however, have held that the Confrontation Clause largely does not reach those machine accusers. This Article argues that, in light of these changes, courts should reinterpret the Confrontation Clause to provide a right to “confront” machine accusers.