The Sixth Amendment to the United States Constitution includes the “Confrontation Clause.” The Confrontation Clause gives a criminal defendant the right to confront the witnesses against him. If you are facing a criminal trial, it is important to know the witnesses who will testify for the prosecution and the scope of your right of confrontation. Here is how I explain that right to my Boston criminal defense clients:
Right of cross-examination
The right of confrontation is the right to cross-examine the prosecution’s witnesses. Under the Sixth Amendment, prosecutors may not prove a defendant’s guilt with statements from non-testifying witnesses. Rather, a defendant has the right to require the witnesses to come to court, to “look the defendant in the eye,” and to answer questions on cross-examination. In addition to asking the witness questions about the crime with which the defendant is charged, a defendant has the right, on cross-examination, to attack the credibility of a witness by, for example, asking about the witness’s past criminal record or gang membership.
Limits on right of confrontation
The right of confrontation is not unlimited. The Supreme Court has held that the “Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is in whatever way, and to whatever extent, the defendant might wish.”
In certain situations, a witness may be unavailable to testify in court. This may occur if, for example, the witness has died; forgotten key events; left the country; or if the witness is claiming a Fifth Amendment privilege against self-incrimination. A defendant forfeits the right to confrontation if the defendant makes the witness unavailable with the intent of preventing the witness from testifying. For example, if a defendant commits a murder in order to prevent the victim from testifying, the victim’s out-of-court statements would be admissible, even though not subject to cross-examination.
If a witness makes a dying declaration regarding a defendant’s guilt, and the defendant was not able to cross-examine the witness, whether that statement is admissible depends on the nature of the declaration. The U.S. Supreme Court held in Bryant v. Michigan that the statements are admissible if their primary purpose was to assist the police in addressing an ongoing emergency. On the other hand, in Crawford v. Washington, the Court held that statements made during police interrogations for the purpose of investigating a crime after an emergency has ended are not admissible if the defendant did not have, through his lawyer, an opportunity for cross-examination.
Contact Boston, MA Criminal Defense Lawyer, Kevin J. Mahoney
The application of the Confrontation Clause to real-life situations is complex and the law is always evolving. Having an experienced Boston defense lawyer on your side will help to ensure your rights are protected. If you would like to speak with us about your case, please (617) 492-0055.