Amdt6.5.3.4 Right to Confront Witnesses Face-to-Face

Sixth Amendment:

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.

Although much of the Court’s Confrontation Clause doctrine has focused on the admissibility of extra-judicial evidence such as out-of-court statements or lab results,1 in several opinions the Court has examined the extent to which the Sixth Amendment affords a right to confront witnesses in person or face-to-face. In one case, the Court considered whether the Confrontation Clause gave the defendant a right to be present for the competency hearing of two child witnesses.2 The Court seemingly construed the issue not as one of the defendant’s right to confront witnesses face-to-face, but rather to obtain effective cross-examination.3 According to the Court, the Sixth Amendment did not require the defendant’s presence in the competency hearing, because “[a]fter the trial court determined that the two children were competent to testify, they appeared and testified in open court” where they were “subject to full and complete cross-examination.” 4 The next year, in Coy v. Iowa,5 the Court emphasized that “the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact.” 6 Therefore, the Court held that the Confrontation Clause barred the use of a “specifically designed” screen that blocked the defendant from the complaining witness’s view as it was “difficult to imagine a more obvious or damaging violation of the defendant’s right to a face-to-face encounter.” 7 However, two years later, the Court held that the Confrontation Clause permitted the testimony, examination, and cross-examination of a child witness by “one-way closed circuit television” from a separate room.8 Although, the child witness could not see the defendant, the Court noted the “important state interest” in protecting the child witness and observed that the closed-circuit testimony “preserve[d] all of the other elements of the confrontation right” such as “contemporaneous cross-examination” and the ability of the “judge, jury, and defendant” to view and assess the “witness as he or she testifies.” 9 In addition, the Court emphasized that the judge made “individualized findings” that testifying face-to-face would cause the child witness serious emotional distress.10

Footnotes
1
Supra Amdt6.5.3.1 Admissibility of Testimonial Statements. back
2
Kentucky v. Stincer, 482 U.S. 730, 732 (1987). back
3
See id. at 740 ( “Instead of attempting to characterize a competency hearing as a trial or pretrial proceeding, it is more useful to consider whether excluding the defendant from the hearing interferes with his opportunity for effective cross-examination.” ). back
4
Id. back
5
487 U.S. 1012 (1988). back
6
Id. at 1016. A face-to-face encounter with the witness, in and of itself, may not be fully sufficient to satisfy a defendant’s right to confrontation, however, if the defendant is deprived adequate cross-examination. See Davis v. Alaska, 415 U.S. 308, 309, 315, 317 (1974) (concluding that trial court infringed on defendant’s confrontation rights where it restricted cross examination regarding the juvenile criminal record of a witness pursuant to a protective order issued under state law, where that criminal record was relevant to the defense theory of bias on the part of the witness). The right to confront witnesses face-to-face does not shield the defendant from having his presence-and his resulting availability to “fabricate” his testimony in light of preceding witnesses-noted by the prosecution. See Portuondo v. Agard, 529 U.S. 61, 65 (2000). back
7
Coy, 487 U.S. at 1020. back
8
Maryland v. Craig, 497 U.S. 836, 851, 852 (1990). back
9
Id. back
10
Id. at 840–42. back