Sixth Amendment

The Sixth Amendment guarantees defendants the right to be confronted by witnesses who offer testimony or evidence against them. The Confrontation Clause has two prongs. The first prong assures defendants the right to be present during all critical stages of trial, allowing them to hear the evidence offered by the prosecution, to consult with their attorneys, and otherwise to participate in their defense. However, the Sixth Amendment permits courts to remove defendants who are disorderly, disrespectful, and abusive (Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 353 [1970]). If an unruly defendant insists on remaining in the courtroom, the Sixth Amendment authorizes courts to take appropriate measures to restrain him. In some instances, courts have shackled and gagged recalcitrant defendants in the presence of the jury (Stewart v. Corbin, 850 F.2d 492 [9th Cir. 1988]). In other instances, defiant defendants have been removed from court and forced to watch the remainder of trial from a prison cell, through closed-circuit television.

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 may test the credibility and reliability of witnesses by probing their recollection and exposing any underlying prejudices, biases, or motives to distort the truth or lie. Confrontation and cross-examination are vital components of the U.S. adversarial system.

Although defendants are usually given wide latitude in exercising their rights under the Confrontation Clause, courts retain broad discretion to impose reasonable restrictions on particular avenues of cross-examination. Defendants may be forbidden from delving into areas that are irrelevant, collateral, confusing, repetitive, or prejudicial. Similarly, defendants may not pursue a line of questioning solely for the purpose of harassment. For example, courts have prohibited defendants from cross-examining alleged rape victims about their sexual histories because such questioning is frequently demeaning and is unlikely to elicit answers that bear more than a remote relationship to the issue of consent (Bell v. Harrison, 670 F.2d 656 [6th Cir. 1982]).

In exceptional circumstances, defendants may be prevented from confronting their accusers face-to-face. If a judge determines that a fragile child would be traumatized by testifying in front of a defendant, the Sixth Amendment authorizes the court to videotape the child's testimony outside the presence of the defendant and later replay the tape during trial (Spigarolo v. Meachum, 934 F.2d 19 [2d Cir. 1991]). However, counsel for both the prosecution and defense must be present during the videotaped testimony. If neither the defendant nor her attorney are permitted the opportunity to confront a witness, even if the witness is a small child whose welfare might be harmed by rigorous cross-examination, the Sixth Amendment has been violated (Tennessee v. Deuter, 839 S.W.2d 391 [Tenn. 1992]).

Occasionally, defendants are denied the opportunity to confront and cross-examine their accusers under the controversial rules of HEARSAY evidence. Hearsay is a written or verbal statement made out of court by one person, and that is later repeated in court by another person who heard or read the statement, and presented for the truth of the matter asserted. Because such out-of-court statements are not typically made under oath or subject to cross-examination, the law treats them as untrustworthy when introduced into evidence by a person other than the original declarant. When hearsay statements are offered for their truth, they generally are deemed inadmissible by state and federal law.

However, certain hearsay statements, such as dying declarations, excited utterances, and officially kept records, are deemed admissible when made under reliable circumstances. Dying declarations are considered reliable when made by persons who have been informed of their impending death because such persons are supposedly more inclined to tell the truth. Excited utterances are considered reliable when made spontaneously and without time for premeditation. Business and public records are considered reliable when kept in the ordinary and official course of corporate or government activities. The prosecution may introduce all four types of evidence, as well as other "firmly rooted" exceptions to the hearsay rule, without violating the Sixth Amendment, even though the defendant is not afforded the opportunity to confront or to cross-examine the out-of-court declarant (United States v. Jackson, 88 F.3d 845 [10th Cir. 1996]).