The Sixth Amendment of the U.S. Constitution guarantees the right of someone accused of a crime to be confronted with witnesses against him. This right is usually termed as the confrontation clause.

The purpose of this right is closely tied with the idea of being innocent until proven guilty. By holding the right to be confront by one’s witnesses, the accused secures the opportunity to cross-examine witnesses. Not only does this enable the accused to challenge the accusations of the witness, but allows the trier of fact (either the judge or jury) to weigh the demeanor of the witness before making a determination on guilt.

What Does the Right to Be Confronted with Witnesses Protect?

There are three protections afforded by the right to be confronted with witnesses:

  • The right of confrontation: this right compels the witnesses to stand face-to-face with the accused and appear before him/her in court in order that the credibility of the witness may be judged by the judge or jury.
  • The right of cross-examination: this is considered the most important of the three protections and allows the accused to challenge the testimony offered by the witness during direct examination.
  • The right to have testimony offered under sanction of oath: this right assures legal sanctions if the witnesses’ accusations are false.

What Type of Testimony Is Subject to Cross-Examination?

According to the Supreme Court, testimonial statements must be subject to cross-examination. Testimonial statements are statements made under circumstances where an objective witness could reasonably believe that the statement would be used at trial.

For example, statements at a police station are almost always considered testimonial. Statements made during an emergency call to 911 are not considered testimonial. 911 calls are not testimonial because the caller’s purpose is to ask for help, not to accuse someone of a crime. The former statement must be subject to cross-examination. The 911 caller does not have to be.

When Does the Confrontation Clause Not Apply?

There are instances when special protections are placed on witnesses. Special protection is usually offered to children in a child molestation case or individuals whose life may be threatened if they appear.

These privileges are not absolute. Judges often weigh the witness’ privilege against the Sixth Amendment. In many cases, a judge might find that a witness must testify even though a privilege or protection is invoked. This depends on the type of privilege asserted, whether there is other evidence available, and what the case is about.

What If the Witness Cannot Remember What Happened?

If the witness does not remember what happened, but is present in court, the witness can be compelled to take the stand.

What If the Witness Cannot Appear in Court?

If a witness is not in court, testimony from earlier proceedings or depositions may be admitted under certain circumstances.

If the witness is unavailable after a good faith effort to bring the witness to court and if the defendant had a previous opportunity to cross-examine the witness for the same reasons the defendant wishes to cross-examine the witness at trial, prior testimony may be admitted.

If the witness is unavailable because the defendant somehow prevented the witness from coming to court with the intent to prevent the witness from testifying, then prior testimony may be admitted. In all other situations, the witness’s testimony cannot be admitted if the witness does not take the stand. This is the essence of the Sixth Amendment.

Do I Need An Attorney?

If you have been accused of a crime, an experienced criminal attorney will ensure that your rights are protected, including your right to confront witnesses against you.