CONFRONTATION
A fundamental right of a defendant in a criminal action to come face-to-face with an adverse witness in the court’s presence so the defendant has a fair chance to object to the testimony of the witness, and the opportunity to cross-examine him or her.
The BILL OF RIGHTS (the first ten amendments of the U.S. Constitution) specifies certain
rights that are inherent to all individuals, in order to protect them from the ARBITRARY use of government power. Among these is the right to confront one’s accusers in a criminal case, which derives from the SIXTH AMENDMENT:“In all criminal prosecutions, the accused shall enjoy the right …to be confronted with the witnesses against him.” The Confrontation Clause, as this part of the Sixth Amendment is generally known,
was understood traditionally to mean that criminal defendants had the right to be put in the presence of their accusers in open court, face-to-face, in front of the jury. This right was intended to give defendants the opportunity to cross-examine adverse witnesses, as well as to provide the jury with an opportunity to observe the demeanor of, and to make inferences regarding the reliability of, those witnesses. The substantive meaning of
this right has been the subject of great debate, especially regarding the trying of CHILD ABUSE cases involving child witnesses. Does the Confrontation Clause provide the right to confront witnesses in open court, or does it simply convey a right to cross-examine witnesses?
Like most of the protections given criminal
defendants in the Constitution, the right of con-
fronting one’s accusers has its origins in English
COMMON LAW and in the experiences of the
colonies before the American Revolution. Until
the sixteenth century, the right of confronting
one’s accusers was nearly absent from the Anglo-
American legal tradition. Then, with the intro-
duction of the right to trial by an impartial jury
and the firm establishment of the PRESUMPTION
OF INNOCENCE, the right of confrontation came
to be seen as an integral part of a proper defense
of the rights of the accused. In the American
colonies, the SALEM WITCH TRIALS in particular
created an impetus for establishing the right of
the accused to a face-to-face confrontation with
the accusers—who, in those cases, were mostly
children anonymously accusing their elders.
Horrified by the widespread use of coerced and
anonymous accusations in these trials, and by
the executions that resulted, the Massachusetts
Legislature established the right to confront
one’s accusers. Soon after, the colonial governor
disbanded the special Salem court for witch tri-
als; few accusers were willing to face their targets
in open court.
The experience of the Salem witch trials made a great impression on the other colonies. By the end of the sixteenth century, most of the
colonies had established in their constitutions a
right of confrontation that was similar to that
recognized in Massachusetts. Thus, at the time
of the writing of the Constitution, the right was
so firmly entrenched that its inclusion in the Bill
of Rights elicited no debate.
The Confrontation Clause gives criminal
defendants two specific rights: the right to be
present during all critical stages of trial, and the
right to confront adverse witnesses. Each of
these rights has certain limitations.
The right to be present during critical stages
of trial allows defendants to participate actively
in their defense by listening to the evidence
against them and consulting with their attorneys.
However, unruly, defiant, disrespectful,
disorderly, and abusive defendants can be
removed from the courtroom if the judge feels it
is necessary, to maintain the decorum and
respect of a judicial proceeding. If a defendant
persists in DISORDERLY CONDUCT, yet demands
to remain in the courtroom, the Sixth Amendment
allows a trial court to have that defendant
bound and gagged so that his or her presence
does not disrupt the proceedings (Tyars v.
Finner, 709 F.2d 1274 [9th Cir. 1983]).
The second prong of the Confrontation
Clause guarantees defendants the right to face
adverse witnesses in person and to subject them
to cross-examination. Through cross-examination,
defendants are allowed to test the reliability
and credibility of witnesses by probing their recollection
and exposing any underlying prejudices,
biases, or motives that may cause the
witness to distort the truth or to lie.However, the
right of cross-examination also has limits.Courts
may restrict defendants from delving into certain
areas on cross-examination. For example, defendants
may be denied the right to ask questions
that are irrelevant, collateral, confusing, repetitive,
or prejudicial. Defendants also may be prevented
from pursuing a line of questioning that
is meant solely for the purpose of harassment.
Under exceptional circumstances, defendants
may be denied the right to confront their accusers
face-to-face. In Maryland v. Craig, 497 U.S.
836, 110 S. Ct. 3157, 111 L. Ed. 2d 666 (1990), the
U.S. Supreme Court upheld a statute that permitted
a small child to testify via a one-way,
closed-circuit television from a remote location
outside the courtroom. In such situations, the
Court ruled, the trial court must make a specific
finding that keeping the witness out of the presence
of the defendant is necessary to protect the
witness from traumatic injury. The Craig decision
has been the subject of some debate. VICTIMS’
RIGHTS advocates and some prosecutors
support the additional protection of witnesses,
but defense attorneys have argued that shielding
children from confrontation is risky, given that
the reliability of children’s testimony is often in
dispute. Even when a witness is permitted to testify
outside the presence of the accused, defendants
maintain the right of cross-examination.
The importance of a defendant’s right to
confront and cross-examine his accusers faceto-
face in open court was revisited by the U.S.
Supreme Court in Lilly v. Virginia, 527 U.S. 116,
119 S. Ct. 1887, 144 L. Ed. 2d 117 (1999).
The case began when the state of Virginia
charged Benjamin Lee Lilly with capital murder
and called his brother Mark Lilly to testify
against him during the trial. When Mark
invoked his PRIVILEGE AGAINST SELF-INCRIMINATION,
the prosecution sought to introduce a
statement that Mark had made to the police in
which he had admitted being with Benjamin on
the night of the murder, and had told police that
he saw Benjamin kill the victim.
The trial court admitted Mark’s statement
into evidence over Benjamin’s objection that it
violated the Confrontation Clause. In particular,
Benjamin argued that the FIFTH AMENDMENT
gave him the right to confront his brother faceto-
face in open court, and that admitting his
brother’s out-of-court, HEARSAY statement
without allowing him to cross-examine Mark
violated that right.
The Virginia trial court overruled Benjamin’s
objection, finding that the statement fell
within a “firmly rooted” hearsay exception. In
Virginia, the trial court said, it is well settled that
declarations against interest are a settled hearsay
exception, and thus admissible against a criminal
defendant without the declarant being subject
to cross-examination.
A declaration against interest is an out-ofcourt
hearsay statement made by a declarant
who implicates himself in criminal activity or
other wrongdoing, the trial court explained.
Because such declarations are not considered to
be self-serving, the trial court continued, they
are deemed inherently trustworthy. In this case,
the trial court noted that Mark Lilly had admitted
committing a number of crimes that would
have made him eligible for long prison terms if
convicted.
Based in part on Mark’s statement, the jury
convicted the defendant of capital murder and
sentenced him to death. The defendant
appealed, and the Virginia Supreme Court
affirmed. Lilly v. Commonwealth, 255 Va. 558,
499 S.E.2d 522 (Va. 1998). Although Virginia’s
high court recognized that Mark’s statements
were self-serving to the extent they shifted
blame for the more serious crime of murder,
from himself to his brother, it said that the selfserving
nature of the statement went to the
weight of the evidence, not its admissibility. The
court also underscored the fact that prosecutors
gave Mark no express promise of leniency in
exchange for his statement.
The U.S. Supreme Court disagreed, reversing
the Virginia Supreme Court’s decision and
remanding the case for further proceedings.
Writing for a plurality of the justices, Justice
JOHN PAUL STEVENS ruled that an accomplice’s
statements that tend to shift or spread the blame
to a criminal defendant are presumptively unreliable,
when that ACCOMPLICE has made himself
or herself unavailable for cross-examination by
invoking the privilege against SELF-INCRIMINATION.
The “absence of an express promise of
leniency,” Stevens wrote, does not ensure reliability
because “police need not tell a person who
is in custody that his statements may gain him
leniency in order for the suspect to surmise that
speaking up, and particularly placing blame on
his cohorts,” could be in his best interest. Stevens
observed that while the presumptive unreliability
of Mark’s statement could be rebutted on
remand to the trial court, any rebuttal evidence
would need to take into account that the statement
had been made in response to the government’s
leading questions.
On remand, the Virginia Supreme Court decided that the statement’s presumptive unreliability could not be rebutted, and overturned the defendant’s conviction. Lilly v. Commonwealth, 258 Va. 548, 523 S.E.2d 208 (Va. 1999).
FURTHER READINGS
Hall, Kermit L. 1992. Oxford Companion to the Supreme Court of the United States. New York & Oxford: Oxford University Press.
Hall, Kermit L. 2002. Oxford Companion to American Law. New York & Oxford: Oxford University Press.
CROSS-REFERENCES
Criminal Procedure.
