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 confronting 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 introduction 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 trials; 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 face- to-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 face- to-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-of-court 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 self-serving 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).