Confrontation Clause

In criminal law, a defendant has the right to be confronted in open court with all the witnesses against him or her so that said witnesses can be cross-examined by the defense and the jury can evaluate their demeanor.  This right of the criminal defendants stems from “Confrontation Clause” of the Sixth Amendment to the United States Constitution that also applies to state courts through the Fourteenth Amendment.

Specifically, the Sixth Amendment provides in relevant part that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . .”  U.S. Const. amend. VI.  The rights guaranteed by the Confrontation Clause are secured in two ways: (1) the right to cross-examine the government’s witnesses; and (2) the right to present a defense, the right to present the defendant’s version of the facts.  However, the main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination.  The Confrontation Clause generally bars the admission of a non-testifying witness’s out-of-court testimonial statement against a criminal defendant.

The reasoning behind the Confrontation Clause was explained by Justice Scalia in Coy v. Iowa, 487 U.S. 1012 (1988) as follows:

The perception that confrontation is essential to fairness has persisted over the centuries because there is much truth to it. A witness may feel quite differently when he has to repeat his story looking at the man whom he will harm greatly by distorting or mistaking the facts. He can now understand what sort of human being that man is.  It is always more difficult to tell a lie about a person to his face than behind his back. In the former context, even if the lie is told, it will often be told less convincingly. The Confrontation Clause does not, of course, compel the witness to fix his eyes upon the defendant; he may studiously look elsewhere, but the trier of fact will draw its own conclusions. Thus the right to face-to-face confrontation serves much the same purpose as a less explicit component of the Confrontation Clause that we have had more frequent occasion to discuss the right to cross-examine the accuser; both ensure the integrity of the fact-finding process. The State can hardly gainsay the profound effect upon a witness of standing in the presence of the person the witness accuses, since that is the very phenomenon it relies upon to establish the potential “trauma” that allegedly justified the extraordinary procedure in the present case. That face-to-face presence may, unfortunately, upset the truthful rape victim or abused child; but by the same token it may confound and undo the false accuser, or reveal the child coached by a malevolent adult. It is a truism that constitutional protections have costs.

The Confrontation Clause does not apply to civil cases.  Moreover, in criminal prosecutions, the United States Supreme Court over the years has recognized a number of narrow exceptions to a criminal defendant’s right to be confronted with the witnesses against him at the time of trial.

For example, In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court held that the Confrontation Clause generally bars the admission of a “testimonial” statement from an absent witness in a criminal trial, unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness.  See also Mattox v. United States, 156 U.S. 237 (1895) (holding that the testimony of a government witness at a former trial against the defendant, where the witness was fully cross-examined but had died after the first trial, was admissible in evidence against the defendant at his second trial).

Moreover, in Maryland v. Craig, 497 U.S. 836 (1990), the Supreme Court upheld a Maryland statute that authorized underage victims of child abuse to testify by one-way, closed-circuit TV upon a witness-specific showing that face-to-face testimony would be traumatic to the child.

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