First, Colorado v. Connelly, 479 U.S. 157 (1986), has nothing to say about the Confrontation Clause. There, the Colorado Supreme Court held that admission of a confession initiated by the defendant while in an impaired mental state violated the Due Process Clause, despite no impropriety on the part of any agent of the state. The US Supreme Court reversed. Justice Rehnquist’s opinion for the Court included this passage, which I gather is what Paul has in mind:
Our “involuntary confession” jurisprudence is entirely consistent with the settled law requiring some sort of “state action” to support a claim of violation of the Due Process Clause of the Fourteenth Amendment. The Colorado trial court, of course, found that the police committed no wrongful acts, and that finding has been neither challenged by respondent nor disturbed by the Supreme Court of Colorado. The latter court, however, concluded that sufficient state action was present by virtue of the admission of the confession into evidence in a court of the State. 702 P.2d, at 728–729.The essence of the holding is that an involuntary coercion, in the meaning of the Due Process Clause, is one that an agent of the state coerced, not one that merely results from the irrational condition of the defendant. That’s really a substantive holding. The Court never says, “There was no state action.” I think its discussion makes it clear that what it is really saying is that there was no action by the state of the sort that makes a confession involuntary for constitutional purposes.
The difficulty with the approach of the Supreme Court of Colorado is that it fails to recognize the essential link between coercive activity of the State, on the one hand, and a resulting confession by a defendant, on the other. The flaw in respondent's constitutional argument is that it would expand our previous line of “voluntariness” cases into a far-ranging requirement that courts must divine a defendant's motivation for speaking or acting as he did even though there be no claim that governmental conduct coerced his decision.
But the wrong with respect to an involuntary confession consists largely in the coercive out-of-court conduct by the state that secures the confession. The Confrontation Clause is altogether different. I’ll emphasize a point made many times before: The Confrontation Clause imposes no constraints on investigative activity by the police or other agents of the state; the police should interview witnesses out of the presence of the accused and with everybody fully anticipating prosecution. What the Confrontation Clause prohibits is the use at trial – which is of course under the auspices of the state – of a testimonial statement to help convict the accused without offering the accused the right to be confronted with the witness who made the statement. That’s pure state action.
Second, Paul claims historical pedigree for his theory, by citing the Raleigh case. The Raleigh case and other state trials are highly atypical of prosecutions of the pre-Revolutionary era. Most crime was privately prosecuted. There was nothing comparable to a modern police force. And yet the confrontation right was well established in ordinary private prosecutions; for example, if the prosecutor (a private party) did not appear, the case was routinely dropped, not pursued by having someone else testify to what the prosecutor had observed. Indeed, Raleigh, in claiming the right, emphasized that if it had been a mundane case – “for two marks” – he would have had an unquestioned right to be confronted with his accusers. A robbery victim, for example, could not have made a statement to a friend about the robbery, in contemplation that the friend rather than the victim would testify at trial.