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Confrontation of State’s Witnesses – 6th Amendment

The 6th Amendment’s confrontation clause reads in relevant parts, “In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against himâ€

The confrontation clause essentially protects the defendant’s right to face any witness offered by the prosecution in a criminal trial to dispute or in some other manner counter that evidence as presented against them.

The 14th Amendment of the United States Constitution has made this right to confrontation applicable to state courts as well as federal courts.  Additionally, the right applies to both statements made inside the courtroom as well as to statements made outside the courtroom that are offered as testimony during the trial proceedings.  It is this latter right that most often affects the outcome of criminal cases.

Confronting a witness called by the prosecution at trial means the defendant has the right to cross-examine that witness.  The manner in which trials are conducted is specific to the judge hearing that case.   No judge will preclude the opportunity to cross-examine, but issues arise as to repetitive testimony or the harassment of a witness unduly upon cross-examination.  The general rule is a trial court has “wide latitude” in establishing its own rules, but a too severe restriction of the defendant’s ability to cross-examine may prove to be a violation of the confrontation clause.

Out-of-court statements are more problematic and face more difficult scrutiny under the confrontation clause.  Prosecutors often attempt to prove a case against an accused by using statements made by people outside the courtroom.  If the person making the statement is not available in court, and therefore the defendant cannot cross-examine him, is that a confrontation clause violation?

The right to confrontation of witnesses is closely guarded by the courts.  The seminal U.S. Supreme Court case dealing with the confrontation clause is the 2004 case of  Crawford v. Washington.  Crawford created the modern foundation for confrontation clause challenges.  Crawford provides expansive 6th Amendment protection for criminal defendants.    Crawford provides that the prosecutor cannot use out of court statements offered as testimony against the defendant unless the witness is unavailable and the defendant has had a previous opportunity to cross-examine that witness.  

Crawford has been applied to a many different situations including.  Most recently in the 2011 U.S. Supreme Court case of Bullcoming v. State of New Mexico, Crawford has been applied to the testimony of lab workers who conduct blood alcohol tests in a DWI.  Bullcoming in turn relied heavily on the 2009 U.S. Supreme Court opinion of Melendez v. Massachusetts which required lab analysts who conduct test on narcotics to be present in court for testimony or to have been made available to the defense prior to trial.

The boundaries of Crawford are constantly evolving both to the advantage and disadvantage of criminal defendants.   The outcome of a case often turns on the confrontation clause.  Violations of the 6th Amendment confrontation clause are among the most common grounds for dismissal of a criminal action.  As such, they should be considered in every criminal case. 

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