Criminal Defense – The Right To Cross Examination

History Of The Right To Confront Your Accuser (Confrontation Right)

Something we often teach children is that they have a right to ask questions of someone who wronged them. Even though they may not get the answers they seek, they have this right. The law has this similar notion in the Confrontation Right. This is the right of a defendant to confront the witness that is testifying against him or her. This usually takes the form of a cross-examination in the courtroom. This right, however, only applies to criminal cases and not civil cases.

This clause has its roots in England. According to The Heritage Guide to The Constitution, “Long before the American Constitution, trials featuring live testimony in open court subject to cross-examination were typical in the English common-law courts.” When the Confrontation right was adopted into the sixth amendment, those who did so probably had that model in mind. This is due to the abuses the American colonists had experienced or witnessed. Framers were familiar with State trails of the early seventeenth-century. In these trials, British prosecutors obtained affidavits or depositions in private. They then presented this information as evidence in trials stating treason against the crown. This most likely caused much anger among those who were subject to the practice. Defendants usually demanded, in futility to have their accusers brought before them face-to-face.

The American colonists faced similar abuses in the 1760s. Parliament allowed the colonial vice-admiralty courts to try certain offenses using a “civil law” model of trial based on written interrogatories instead of live testimony. Both George Mason and John Adams publicly condemned that practice. As the Supreme Court declared in its first major Confrontation Clause opinion, “The primary object of [the clause] was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness.” Mattox v. United States (1895).

Today this law is well practiced, and the clause the guarantees opportunity for cross-examination.

It is important to appreciate the history of this clause. Because of this clause, lawyers cannot bring out of court statements, or hearsay, into the courtroom to use in a trial. According to to Revolutionary War and Beyond, which is a website that discussed the history of this clause, “Hearsay is not permitted in court because the defendant cannot cross-examine or challenge the witness.” This protects a defendant from being blindsided by a comment made in anger outside of court being used against them in court. There are examples where this does not apply. Testimony given by someone on a deathbed, for example, can be used in court because it is assumed that person will not be able to be present. Also, if a witness is no longer available, meaning they died or moved, this rule can be amended. However, in all other situation it holds and is a protective measure allowing for the full facts of the case to be presented so the jury can make a through deliberation.

The confrontation clause is an important one in the American courtroom. Rooted in England and carried into the constitution by the founding fathers, the clause holds an important place in the courtroom. It allows the for statements that may hold no weight to be ignored in a trial, and it allows the accused to ask the questions that may help prevent facts or clarify situations. As history shows, this clause can stop bullying from occurring and false charges from being placed based on circumstantial evidence an individual was confessing in private. The next time you hear the word hearsay, you will have a greater appreciation for where it came from and what it means.