Witnesses, confrontation of Summary

  • Last updated on November 11, 2022

The right, guaranteed by the U.S. Constitution’s Sixth Amendment, of criminal defendants to have the witnesses against them testify in open court, face to face with them and the fact-finder, and to cross-examine those witnesses.

The Sixth Amendment’sSixth Amendment confrontation clause fosters reliability and fairness in federal and state prosecutions. It allows criminal defendants to confront witnesses against them in open court, under oath or affirmation, face to face, and to cross-examine these witnesses. The scope of its protections, which benefit criminal defendants, has been defined by Supreme Court decisions citing history, reason, and practicality.

Normally, words may not be reported by others or in writing that is, the witness must appear and may be cross-examined under the full panoply of courtroom safeguards. However, the defendants’ entitlements are qualified. For example, the separate, long-standing evidentiary rule against hearsay has numerous exceptions permitting second-hand or reported evidence, most of which, if they are deemed “firmly rooted” (rational and historically traditional), the Court has gradually been incorporating into the confrontation clause as in White v. Illinois[case]White v. Illinois[White v. Illinois] (1992) and Bourjailly v. United States[case]Bourjailly v. United States[Bourjailly v. United States] (1987). Thus, excited utterances, statements to physicians, coconspirator statements during and furthering the conspiracy, and the like can be reported, though the person who spoke them is not at trial to be confronted. These sorts of statements are presumed to be especially reliable and necessary. In Idaho v. Wright[case]Idaho v. Wright[Idaho v. Wright] (1990), the Court ruled that some second-hand statements could be allowed if special facts demonstrated their reliability and necessity. In Ohio v. Roberts[case]Ohio v. Roberts[Ohio v. Roberts] (1980), the Court ruled that sometimes the litigators must demonstrate the unavailability of the witness for appearance at trial before second-hand statements could be admitted as evidence.

Once witnesses are produced at trial, defendants’ opportunity to cross-examine them may similarly be confined within reasonable limits. In Montana v. Egelhoff[case]Montana v. Egelhoff[Montana v. Egelhoff] (1996), the Court ruled that, for example, the judge may apply normal exclusionary evidence rules, recognize privileges, or prohibit unduly prejudicial, harassing, time-consuming, or misleading questioning. If a witness becomes ill or dies after giving testimony but before full cross-examination, the testimony might still be allowed to stand. In Maryland v. Craig [case]Maryland v. Craig[Maryland v. Craig](1990), the Court determined that if a specific child-witness will suffer trauma from confronting his or her accused molester, the child may testify on one-way closed-circuit television, despite some infringement of the face-to-face requirement, provided there is full opportunity to put questions to the witness and all can see the screen.

Thus, the rights conferred by the confrontation clause are not absolute but are qualified by countervailing concerns and may amount merely to a strong preference.

Jury, trial by

Maryland v. Craig

Pointer v. Texas

Sixth Amendment

Speedy trial

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