Guest Essayist: Horace Cooper, Senior Fellow with the Heartland Institute

Amendment VI:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of counsel for his defence.

“…Right to confront your accuser…”

Perhaps more so than any other provision, the 6th Amendment’s confrontation clause is one of the greatest criminal justice protections of the Constitution.

While many Americans today may not be aware, there was a time when trials didn’t operate with the protections that we rely upon today.  Consider the trial of Sir Walter Raleigh.  Well known for promoting tobacco in England, he was an English aristocrat, writer, poet, soldier, courtier, spy, and explorer.

In 1603, Sir Walter Raleigh was arrested and accused of treason against King James.  Raleigh was allegedly one of the primary conspirators of the so-called “Main Plot,” an effort to end the rule of King James an install his cousin in his place.

The trial was held in the Great Hall of Winchester Castle and the primary evidence relied upon by the crown was the signed confession of Henry Brook, the Baron of Cobham. Throughout the trial, Raleigh requested that Baron Cobham be called in to testify so that he might demonstrate the falsity of the claims, “[Let] my accuser come face to face, and be deposed. Were the case but for a small copyhold, you would have witnesses or good proof to lead the jury to a verdict; and I am here for my life!”

Even though criminal law prevented the use of so called “hearsay” evidence, the crown’s tribunal refused to compel Baron Cobham’s testimony.   Without the ability to publicly force the baron’s testimony or to challenge his veracity, ultimately Raleigh was found guilty and imprisoned in the famous Tower of London.

This experience was a powerful one for the colonists coming to America and would significantly influence the contours of the 6th Amendment.

The modern Supreme Court has made it clear 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.”

The power of the government to use its resources to accuse, indict and try an individual is considerable.  The framers understood this concern and therefore provided for a means whereby the individual could have the ability to limit the impact of the government’s power in this arena.   The confrontation clause explicitly places a limit by requiring that evidence be presented by a bona fide witness capable of being “cross examined” or challenged on the witness stand.

Thus instead of unknown witnesses or unidentified individuals presenting allegations secretly to convict a person, the confrontation clause requires not only that the government identify those individuals as part of the trial, but to also allow the defendant to rebut or challenge any evidence they attempt to present.

Typically the confrontation rule requires that this occur in open court.  This rule not only applies to witnesses, but also to any written documentation or other types of evidence that the government may wish to present in a trial.  In other words, not only must a homeowner – who was an eyewitness — submit to “cross examination” in a burglary trial, any finger print or blood evidence must also be subject to a challenge by experts in finger print and forensic science.

Normally, evidence is testimonial, that is there is a person making the statement which is considered by the judge or jury and he or she must generally be available for cross examination.  While there may be an exception for a circumstance wherein the witness is unavailable, generally speaking the defendant must have had a prior opportunity for cross-examination of the witness before that testimony is allowed.

Furthermore the confrontation clause is one of the reasons that so-called “hearsay” evidence is limited in court.  Hearsay simply covers the type of information that may prove useful for a trial that is presented by someone other than an eyewitness about information that typically only the eyewitness could recount.  Because of the confrontation clause, even the limited evidence that is allowed to be presented under hearsay exemptions still must be presented by witnesses that can be challenged.  For example, a so-called deathbed confession may be allowed to be entered as evidence.  However the person or document presenting the evidence must be capable of being challenged regarding their motive or accuracy etc.

Without the confrontation clause, a valuable right would not exist that protects individuals against the power of the state. Per the terms of the confrontation clause, Ex Parte or out of court statements are generally not allowed, defendants are guaranteed the right of “personal examination” of the witness, the witness must testify under oath, and the jury must be allowed to observe the demeanor of the witness in making his statement.

Horace Cooper is a senior fellow with the Heartland Institute and is a writer and legal commentator

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March 28, 2012

Essay #28

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