The Confrontation Clause: What Is It, and How Do I Use It?

The confrontation clause is a provision in the Sixth Amendment of the United State Constitution which provides that “in all criminal proceedings, the accused shall enjoy the right… to be confronted with all witnesses against him.” What this means for  the defendant is that he/she has the right to fully cross examine any and all witnesses who testify against you at trial.

This only applies at criminal proceedings. There are a very small number of cases where the defendant will not be allowed to actually see the witness, or the witness may be permitted to be examined in a room away from the defendant. One example might be where the witness is a child who suffered sexual abuse. Then the child is generally kept in a separate room and the defendant watches the testimony from closed circuit television. Face to face confrontation is preferred but it must sometimes be replaced where public policy or issues of travel prevent it.

If a statement is “testimonial” the witness must be cross examined (testimonial means it tells a story,it  offers facts for the court’s consideration).  Generally to be cross-examined the witness must be available (i.e. in court). When witness is unavailable or becomes unavailable the court should not allow the testimony to come in. The defendant may object to any questions asked where he would not be permitted to cross examine due to a lack of availability of the witness. Unavailability may be: death, loss of memory, taking the Fifth, or simply not answering the questions and refusing to cooperate.

If a witness is unavailable and the defendant had no previous opportunity to cross examine the witness, then the witness’s testimony should not be permitted at trial. If you think you have an issue where a witness is unavailable and/or full cross examination was not possible, contact your attorney, or if you are unrepresented contact this firm.

There are two exceptions to the confrontation clause:

  1. A dying declaration- where the proposed testimony is made by a person when they believe they are dying and they are subsequently unavailable for cross examination (just unavailable, not necessarily dead) then their testimony is considered truthful and it is permitted.
  2. Wrongdoing- where the defendant deliberately make the witness unavailable through some form of wrongdoing, then the defendant gives up any right to confront the witness. The key is that the wrongful act was done specifically to prevent the witness form testifying. That is a new concept I will be discussing at my other blog, within a few weeks.

All other laws must give way to the confrontation clause because it is in the constitution. This means that hearsay rules and rape shield laws will not prevent you from cross-examining a witness.

Where the information the witness would have given is non-testimonial, the confrontation clause does not apply.

Relevant expansion in Wyoming:

–          In accusations of sexual assault, the defendant is permitted to cross examine the victim about other relevant sexual activities, so long as both parties are over the age of majority. Hannon v. State.

–          A pretrial deposition by the defendant can be sufficient cross-examination of a witness such that an unavailable witness’s testimony could be given at trial. Martinez v. State.

–          Where a testimonial statement is entered, the witness must be allowed confrontation, the mere fact that the statement is given under oath or as a confession of some sort is not sufficient protection and admission of such a statement without opportunity to cross is not permissible. Vigil v. State.

Relevant expansion in Pennsylvania:

–          Pennsylvania holds differently from Wyoming and states that sufficient protection by the hearsay exceptions can remove the necessity for confrontation of the witness, even when the statements are testimonial. Commonwealth v. Carter (I believe this will be challenged at some point, but for now, it is the law in Pennsylvania)

–          The confrontation clause does not guarantee access to pretrial discovery, it is only a trial right. Commonwealth v. Herrick.

–          A trial judge retains wide latitude to determine how far cross-examination may go in the face of concerns like harassment, prejudice, confusion of the issues, witness safety, etc. Commonwealth v. Handfield.