Right of Accused to Confront Witnesses

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 Can a Criminal Defendant Confront Witnesses?

Yes, a criminal defendant has the right to confront witnesses based on the Sixth Amendment of the U.S. Constitution, which guarantees the right of an individual who is accused of a crime to confront the witnesses against them. Typically, this is referred to as a right under the confrontation clause.

The purpose of this right to confront witnesses amendment is tied closely with the idea of being innocent until proven guilty. By having the right to confront witnesses, the defendant secures the opportunity to cross-examine those witnesses.

This enables the defendant to challenge the accusations of the witnesses as well as allowing the trier of fact, either the judge or jury, to weigh the demeanor of the witness prior to making a determination regarding the defendant’s guilt.

What Does the Right to Confront Witnesses Protect?

There are three protections that are provided with the right to confront witnesses, including:

  • The right of confrontation: This right compels a witness to stand face-to-face with the accused and appear before them in court so that the credibility of the witness may be determined by the judge or jury;
  • The right of cross-examination: This is considered the most important of the three protections because it allows the accused to challenge the testimony offered by the witness during direct examination; and
  • The right to have testimony offered under sanction of oath: This right provides for legal sanctions if the witnesses’ accusations are false.

What Type of Testimony Is Subject to Cross-Examination?

The Supreme Court has held that testimonial statements must be subject to cross-examination. A testimonial statement is a statement that is made under circumstances where an objective witness would reasonably believe that the statement would be used during the trial.

For example, statements made at police stations are usually always considered to be testimonial. These must be subject to cross-examination.

Statements that are made during emergency calls to 911 are not considered testimonial. 911 calls are not testimonial because the caller’s purpose is to request help and not to accuse another individual of a crime.

A 911 caller does not have to be subject to cross-examination.

What Is the Confrontation Clause?

As discussed above, the Confrontation Clause is part of the Sixth Amendment to the United States Constitution. The Confrontation Clause provides criminal defendants with the right to confront witnesses who are testifying against them.

The Confrontation Clause also makes it more difficult for hearsay evidence to be admitted in criminal cases.

What Is Hearsay?

Hearsay is a form of evidence that is provided by an individual who obtained the information secondhand. The individual who obtained that information may be called to testify if the individual with first-hand knowledge is not available to provide testimony for whatever reason.

In this situation, the defendant would not be able to cross-examine the individual who provided the first-hand evidence. For this reason, hearsay evidence is typically excluded, especially in criminal cases.

Are There Exceptions to the Hearsay Rule?

Yes, there are numerous exceptions to the hearsay rule that allow certain forms of secondhand evidence to be admitted during a trial. Although the specific exceptions can vary by jurisdiction, they usually include:

  • A statement made under stress, also referred to as an excited utterance;
  • A statement made present sense impressions;
  • A statement made to obtain medical treatment;
  • Public and business records;
  • Any admission of liability or guilt;
  • Prior statements that are inconsistent with each other; and
  • Dying declarations.

When Does the Confrontation Clause Not Apply?

There are situations when special protections are placed on witnesses where the Confrontation Clause will not apply. These protections are usually offered to children in child molestation cases or individuals whose lives may be threatened if they appear in court to testify.

These protections, however, are not absolute. A court will often weigh the witness’ privilege against the Sixth Amendment.

In many situations, the court may find that a witness must testify even though there is a privilege or protection invoked. This will depend on the type of privilege that is asserted, whether there is other evidence available, and what the case is about.

What if the Witness Cannot Remember What Happened?

If a witness cannot remember what occurred, but they are present in the courtroom, they can be compelled to take the stand. They would just state they cannot remember, and the defendant can cross-examine them on that issue.

What if the Witness Cannot Appear in Court?

If a witness cannot appear in court, testimony from earlier proceedings or depositions may be admitted under certain circumstances. If, after a good faith effort to bring the witness to court and a previous opportunity to cross-examine the witness for the same reasons the defendant wants to cross-examine the witness at trial, their prior testimony can be admitted.

The witness may not be available due to the fact that the defendant prevented the witness from coming to court in order to prevent the witness from testifying. In that case, their prior testimony may be admitted. In any other situation, if the witness is not present and does not take the stand, their testimony cannot be admitted.

Admissibility of 911 Calls in Domestic Violence Cases

An out-of-court utterance, including on a recorded 911 call, may be admissible as evidence in certain situations. This includes domestic abuse criminal trials, according to the United States Supreme Court, and this does not violate the defendant’s Sixth Amendment rights.

Can the 911 Call Made by the Victim Be Used as Evidence?

The Supreme Court upheld the admission of 911 calls into evidence under certain circumstances in 2006. Prior to this, admitting 911 phone conversations when a victim was not present in court was challenging. This is because of the Confrontation Clause of the Sixth Amendment, which gives the criminal defendant the opportunity to face witnesses against them.

If a 911 call was admitted into evidence, but the victim on the recording was not available for cross-examination by the defendant’s counsel, the defendant’s right to a fair trial was violated.

The Supreme Court has established specific standards to evaluate whether or not 911 calls can be admitted into evidence.

So Not All 911 Calls Will Be Allowed as Evidence?

No, not all 911 calls will be admitted as evidence. Only those considered non-testimonial in nature will be admitted into evidence.

In other words, if the call was made to allow law enforcement to handle an ongoing emergency and the individual made an excited utterance, such as, “Joe is stabbing me!” In contrast, the statement was testimonial, and there was no emergency or threat, and the questioning was done to establish or prove previous facts or occurrences that are possibly relevant to a criminal prosecution. In that case, it would not be admissible unless an exception applied.

The Three-Pronged Test

For a 911 call recording to be admissible during a court proceeding, it must meet these three requirements:

  • The circumstances show that the declarant’s comments were made spontaneously and sincerely;
  • The 911 call is made within a reasonably short time after the incident so that the declarant has not had time to premeditate their statement; and
  • The 911 call was made during a serious event, and the declarant was in a state of nervous excitement or physical shock.

Do I Need an Attorney?

If you have been charged with a crime and have any issues, questions, or concerns regarding your right to confront witnesses, it is essential to consult with a criminal lawyer. Your lawyer can explain the laws of your state as well as whether there is any evidence that may be admissible under a hearsay exception. They can also explain if alternate forms of testimony may be entered as evidence against you.

Having a lawyer on your case will help ensure that your Sixth Amendment rights, as well as your other rights, are protected throughout the trial. Your attorney is best equipped to defend against the charges against you and ensure that only admissible evidence is allowed to be entered at trial.

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