One of the hot topics in criminal defense these days is the sixth amendment’s ‘confrontation clause’, and we thought we’d take an extended look at it.
The Sixth Amendment to the US Constitution includes the rights to speedy trial, to a jury, and to the assistance of counsel. It also states that “the accused shall enjoy the right . . . to be confronted with the witnesses against him . . .”
What does it mean to have the right to confront witnesses? If we take a look at Merriam-Webster’s online Dictionary, the first meaning listed for the word confront is “to face especially in challenge: oppose” (as in “confront an enemy”). In other words, the right to confront really has to mean the right to challenge.
Where does this right come from and how long has it been around? The New Testament recounts the rescue of St. Paul from a rioting mob. His rescuers having decided to torture him to find out why the crowd was so upset, Paul reasonably asked “Is it lawful for you to scourge a man that is a Roman, and uncondemned?” The key word here was ‘Roman’. As set forth later in the same source:
It is not the manner of the Romans to deliver any man to die, before that he which is accused have the accusers face to face, and have licence to answer for himself concerning the crime laid against him.
This looks a lot like a Roman form of the Confrontation Clause, at least in death penalty cases. In short, the principle has been around for a long time.
So what does our Confrontation Clause look like in action? In principle, witnesses testifying against the accused must come into court themselves – not just to give the testimony their proponent has prepared them to give – but to undergo cross examination by the other side. Vigorous cross examination is the way we challenge and test witness testimony in our courts. Essentially, the right to confront your accuser has no meaning if it doesn’t require the accuser to be subjected to cross examination.
Mike and Sylvia and Kenny: Close Encounters of the Out-of-Court Kind
The current playing field was laid out by the US Supreme Court in 2004, in a case called Crawford v. Washington.
On August 5, 1999, Michael Crawford and his wife Sylvia called on Kenny Lee at his apartment. Mike apparently believed that Kenny had tried to rape Sylvia earlier, and he may or may not have come with the intention of having an adult conversation about it. The private tete a tete a tete ended in a fight, however, and Kenny got stabbed.
Later that evening, Mike was arrested. Sylvia got dragged in, as well, and both Sylvia and Mike were interrogated.
Mike’s story was that just before the fight started he thought he’d seen Kenny reach for something that might have been a knife. Sylvia told the police she hadn’t seen a knife in Kenny’s hand.
Under Washington law, as is true of many states, there is a marital privilege. This meant that the State couldn’t get Sylvia to testify against Mike unless Mike consented – and Mike, of course, wasn’t about to consent.
But Washington law made a distinction between in-court testimony (which was prohibited without the defendant’s consent) and out-of-court statements. Out-of-court statements, arguably, weren’t covered by the privilege.
So at trial, the judge allowed the State to use the audio tape of Sylvia’s interrogation as evidence against Mike at his trial for assault and attempted murder. The trial court reasoned that even though there had been no cross-examination, Sylvia was unavailable as a witness, and the statement was ‘otherwise reliable’. Mike was ultimately convicted of assault, and it seems very likely that this out-of-court statement had made the difference between acquittal and conviction.
The case went through the appellate courts of the State of Washington, which affirmed the conviction, and ultimately the whole mess wound up in the laps of the US Supreme Court.
Which wasn’t having any of it, as we’ll see in later entries.