The Confrontation Clause

In addition to explicitly providing for effective assistance of counsel, the Sixth Amendment gives the accused the right to confront witnesses adverse to his interests. This, of course, does not mean that a Defendant has the right to “get in a witness' face” or grill the witness under a hot light. It merely means that a defendant has the right to insist that the witness testify in the defendant's presence and that the defendant has the right, usually through his attorney, to cross-examine the witness. See Davis v. Alaska, 415 U.S. 308 (1974).

The rationale behind the confrontation clause, according to the Supreme Court, in California v. Green, 399 U.S. 149 (1970), is (a) to limit the likelihood that a witness will lie, by making her swear an oath and expose her to risk of prosecution for perjury if she testifies falsely, (b) to force the witness to endure cross-examination, and (c) to allow the jury to observe the witness giving the testimony in order to better assess credibility.

EXAMPLE: A jury is provided with a written statement from Cartman that asserts Cartman saw Butters throw the egg salad that started a food fight. When brought to the stand, Butters’ attorney asks Cartman whether he himself enjoys throwing food. “Whatever. I do what I want,” he replies. He then curses, spews out some racial and cultural epithets, and gets up from his seat on the witness stand and informs everyone in the courtroom that he’s going home, while using some more colorful language in the process. Clearly, the jury is better off for having witnessed Cartman's display, in assessing Cartman’s reliability and honesty than they would have been had Cartman merely "testified" by affidavit.

The Confrontation Clause has been read to generally provide defendants with the right to be in the courtroom during trial and the right to a face-to-face confrontation with the witness. These rights, however, have been carefully limited. See Illinois v. Allen, 397 U.S. 337 (1970) and Maryland v. Craig, 497 U.S. 836 (1990). The right to be present in the courtroom does not necessarily apply to pre-trial hearings, and it can be waived by voluntary absence or by disorderly conduct. The right to a face-to-face confrontation is also not absolute. A face-to-face confrontation may be prevented if preventing it serves an important public purpose without sacrificing the rationale behind the right of confrontation. In other words, the confrontation can be avoided only if the court finds that the confrontation would conflict with some important public purpose AND if steps are taken to ensure the reliability of the testimony.

EXAMPLE (1): Dale is arrested for murder. He is accused of using a time bomb to kill his wife’s lover. A neighborhood 6-year-old is thought to be a material witness, and a hearing is held to determine the girl’s competency to testify. Dale has no right to be present at the competency hearing because the hearing itself will not address any substantive issues of the case.

EXAMPLE (2): Dale was released after posting bail. On the first day of the trial, he decides not to show up. Instead, he decides it is more important to do some yard work. His voluntary absence is a waiver of his right to be present at his trial.

EXAMPLE (3): As the trial progresses, Dale becomes increasingly irritated at the Judge’s refusal to listen to his theories regarding aliens and government cover-ups. Time and again, Dale jumps from his seat and makes sharp remarks. He has been handcuffed to his chair and gagged. Still, he finds ways to make noise and otherwise disrupt the hearing. The Judge may have him removed from the courtroom without running afoul of the Confrontation Clause. Through his unruly behavior, Dale has effectively waived his right to be present during trial.

EXAMPLE (4): As a prison prank, one of the guards hides Dale’s clothes one night. He is left only with an orange prison uniform. When he wakes up the following morning, Dale refuses to attend court wearing the uniform. He has not waived his right to be present, as forcing a defendant to wear a prison uniform is an impermissible restraint on his rights under the Sixth Amendment. Instead, the trial must be delayed until Dale gets his court clothes back. See Estelle v. Williams, 425 U.S. 501 (1976).

The right to cross-examine a witness adverse to the Defendant and to lead and impeach such witnesses is also granted by the Confrontation Clause. The scope of cross-examination (the permissible topics or subjects) must be broad enough to permit questioning on any subject that could reflect any possible bias on part of the witness. See Davis v. Alaska, 415 U.S. 308 (1974).

EXAMPLE: Nat is called to testify as a witness for the prosecution. The Defendant’s attorney asks Nat, on cross-examination, if he ever got arrested as a child. Although the state has an interest in protecting the identity of juvenile offenders, the defendant’s Confrontation Clause rights supercede the state’s interest here and Nat must answer the question.