Trial: Right to Confront Witnesses

Question 1

What is a D’s right to confront witnesss, in general?

Answer 1

IN GENERAL –> 6th amendment confrontation clause grants D in criminal prosecution the right to confront adverse witnesses

HOWEVER –> this right is not absolut:

1. Face to face confrontation is not required when preventing confrontation serves an IMPORTANT PUBLIC PURPOSE (example –> protecting child witnesses from trauma)
2. Judge MAY remove disruptive D
3. D MAY voluntarily leave courtroom during trial

Question 2

What two issues arise w regards to right to confront witness?

Answer 2

1. Prior testimonial statement of unavailable witness

2. Introduction of co-Defendant’s confession

Question 3

What is the rule re: prior testimonial statement of unavailable witness and confrontation clause?

Answer 3

Under confrontation clause, prior testimonial evidence (statements made at prior judicial proceedings) is NOT admissible UNLESS:

1. declarant is UNAVAILABLE; and
2. D had OPPORTUNITY to CROSS-EXAMINE declarant at the time statement was made

Question 4

When is statement “testimonial” ?

Answer 4

Unclear.

But, includes at a minimum –> statements from preliminary hearing, grand jury hearing, former trial, police interrogation to establish or prove past acts, forensic lab statements offered for truth of matter asserted

Not testimonial –> statements to police intending to aid in ONGOING emergency, forensic lab statements not offered for truth of matter asserted

Question 5

What is the rule w regards to forfeiture of the confrontation clause for “wrongdoing”?

Answer 5

• D may forfeit confrontation for wrongdoing.
• HOWEVER –> court must find that they INTENDED the wrong in order to prevent witness from testifying

EXAMPLE –> murdering witness is not enough. it must be shown that witness was murdered for the purpose of not testifying.

Question 6

Introduction of co-defendant’s confession (come back to p 31)

Answer 6

(come back to p 32)