Right to confront witness


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 as well as the right to cross-examine the prosecution's witnesses.


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, the Supreme Court enunciated the three fundamental purposes that the Confrontation Clause was meant to serve:

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

In Lee v. Illinois, the Court noted that the Confrontation Clause is one of several safeguards provided by the Constitution to promote fairness in the criminal justice system through open trials based on challengeable evidence. The Court had 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. See Ohio v. Roberts. However, the Court backed off in Coy v. Iowa, stating that taking other interests into account should not be interpreted as creating exceptions to “the irreducible literal meaning of the clause”: a defendant has the right to confront his alleged victim “face-to-face” (but see Maryland v. Craig below).


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. In Barber v. Page, the Court recognized a common law exception to the confrontation 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 Court reaffirmed this exception in Crawford v. Washington as the only one available for testimonial hearsay. The Sixth Amendment is not concerned with non-testimonial hearsay statements (such as informal statements made to police officers to enable them to respond to an ongoing emergency). Therefore, this issue is left to the hearsay laws of the states.


In Brookhart v. Janis, the Supreme Court held that a defendant’s Sixth Amendment right had been violated when a lower court refused to let him cross-examine the witnesses who testified against him at his trial. Although the ultimate purpose of the Confrontation Clause is to ensure reliability of the evidence, it is a procedural, rather than substantive, guarantee. This means that the Constitution does not require that evidence be reliable, but that its reliability be tested in a particular way (confrontation). See Melendez-Diaz v. Massachusetts.

Although a defendant’s right of confrontation may not be denied, it can be limited. In Smith v. Illinois, the 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, the 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.

See constitutional clauses.

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