right to confront witness

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The Sixth Amendment provides that a person accused of a crime has the right to confront a witness against him or her in a criminal action.  This includes the right to be present at the trial (which is guaranteed by the Federal Rules of Criminal Procedure Rule 43). As well as the right to cross-examine the prosecution's witnesses.

Constitutional Basis and Purpose 

The Confrontation Clause found in the Sixth Amendment provides that "in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him." The Clause was intended to prevent the conviction of a defendant upon written evidence (such as depositions or ex parte affidavits) without that defendant having an opportunity to face his or her accusers and to put their honesty and truthfulness to test before the jury.

In Mattox v. United States, 156 U.S. 237 (1895), the Supreme Court enunciated the three fundamental purposes that the Confrontation Clause was meant to serve:

  1. To ensure that witnesses would testify under oath and understand the serious nature of the trial process;
  2. To allow the accused to cross-examine witnesses who testify against him; and
  3. To allow jurors to assess the credibility of a witness by observing that witness’s behavior.

In Lee v. Illinois, 476 U.S. 530 (1986), the Court noted that the Confrontation Clause is one of several constitutional safeguards toc promote fairness in the criminal justice system. In Ohio v. Roberts, 448 U.S. 56 (1980), the Supreme Court left open the possibility that competing interests, such as a jurisdiction’s interest in effective law enforcement, might prevail over the right to confront opposing witnesses. However, in Coy v. Iowa, 487 U.S. 1012 (1988), the Supreme Court held that that taking other interests into account should not be interpreted as creating exceptions to “the irreducible literal meaning of the clause,” reaffirming that a defendant has the right to confront his alleged victim “face-to-face." However, as per Maryland v. Craig, 497 U.S. 836 (1990) below, there may still be exceptions.

Admission of out-of-Court Statements 

The admission of hearsay evidence sometimes results in depriving defendants of their right to confront opposing witnesses, as the Supreme Court observed in Delaney v. United States, 263 U.S. 586 (1924).

In Barber v. Page, 390 U.S. 719 (1968), the Court recognized a common law exception to the Confrontation Clause's requirement when a witness was unavailable and, during previous judicial proceedings, had testified against the same defendant and was subject to cross-examination by that defendant. The Supreme Court reaffirmed this exception in Crawford v. Washington, 541 U.S. 36 (2004), holding that "the Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify and the defendant had had a prior opportunity for cross-examination." Further, the Court in Crawford overturned Ohio v. Roberts (above).

Restrictions on the Scope of Cross-Examination 

In Brookhart v. Janis 384 U.S. 1 (1966), the Supreme Court held that a defendant’s Sixth Amendment right had been violated when a trial court refuses to let him cross-examine the witnesses who testified against him at his trial, even if his attorney tries to waive the defendant's right to do so.

In Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), the Supreme Court held that in order to fulfill the procedural due process inherent in the Confrontation Clause, a criminal defendant must have the opportunity to cross-examine testimony that has been made against him. In an analogy the Melendez-Diaz Court made, "Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes."

Limiting the Defendant's Ability to Cross-Examine

Although a defendant’s right of confrontation may not be denied, it can be limited. In Smith v. Illinois, 390 U.S. 129 (1968), the Supreme Court ruled that a trial court may exercise a reasonable judgment in determining when a subject of cross-examination was exhausted, and had a duty to protect witnesses from questions exceeding the bounds of proper cross-examination solely to harass, annoy, or humiliate them. For a trial to be fair, however, a trial court must give a cross-examiner reasonable latitude and cannot limit cross-examination in a way that would render it meaningless.

In Maryland v. Craig, 497 U.S. 836 (1990), the Supreme Court stated that although the Confrontation Clause reflects a preference for face-to-face confrontation at trial, that preference must occasionally give way to considerations of public policy and the necessities of the case. For example, a child alleged to be the victim of abuse may be permitted to testify by one-way closed circuit television if the judge determines that face-to-face cross-examination would result in serious emotional distress for the child.

Further Reading

For more on the right to confront a witness, see this Florida State University Law Review article, this St. John's Law Review article, and this Louisiana State University Law Review article