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The Confrontation Clause And What It Means For You

by | Jan 25, 2023 | Criminal Law


Although many only think of the right to counsel when discussing the Sixth Amendment to the Constitution in Florida, the amendment protects several other rights of accused persons. Among them is the right to confront witnesses who have been called to testify against a defendant in a criminal prosecution.


The roots of the right to confront witnesses are indeed deep. One of the earliest mentions in Western culture of that right is made in the Christian Bible’s book of Acts, which cites Roman governor Porcius Festus as recognizing that a man charged with a capital crime has the right to meet those accusing him face-to-face and have the chance to defend himself against their testimony.


Currently, the Confrontation Clause of the Sixth Amendment is interpreted to mean that a defendant has the right to cross-examine witnesses who have become unavailable since their original statements if those statements are testimonial in nature. In the 2006 Supreme Court case Davis v. Washington, the Court defined testimonial statements as follows:


“Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.”


Later in the Davis opinion, the Court identified the factors determining whether the statement is testimonial:


  • Whether the statement describes a past event or an ongoing event,
  • whether the statement is to aid in investigating a crime, and
  • how formal the exchange was when the statement in question was made.


Assuming the statement is found to be testimonial in nature, the next question is whether the person making the statement is available to be cross examined. Claiming a privilege against testifying may result in unavailability. So too may death or disability. Memory loss is another scenario in which a witness may be unavailable, as well as the witness’s general lack of cooperation in the legal proceedings.


Certain exceptions apply to the right to confront a witness. One that has been formally recognized by the Court is that of forfeiture by wrongdoing. For instance, if the witness is unavailable to testify because the defendant murdered the witness to prevent him or her from testifying, the defendant has lost the right to confront that witness. However, if the defendant is found to have murdered the witness for reasons other than to prevent him or her from testifying, the right of confrontation may not be lost.


Another exception that has not explicitly been recognized by the Supreme Court is if the witness’s statement is done as a dying declaration. According to the Federal Rules of Evidence, a dying declaration must meet four criteria:


  • The declaration is being offered in a homicide or a civil case,
  • the declarant is unavailable,
  • the declarant must have genuinely believed he or she was about to die (even if he or she did not in fact die), and
  • the statement relates to the cause or circumstances of their believed impending death.


If these four elements are met, the declarant of a dying declaration need not be cross examined for his or her statements to be admissible.


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