For the Defense - Vol. 5, Issue 3 - 7

The Constitutional Right to Confront
Adverse Witnesses
The Sixth Amendment to the U.S. Constitution
provides that "[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted
with the witnesses against him." This right is
incorporated by the Due Process Clause of the
Fourteenth Amendment to the U.S. Constitution
and thus applies to proceedings in state court.5
The U.S. Supreme Court has explained that the
purpose of the Confrontation Clause is "to ensure
the reliability of the evidence against a criminal
defendant by subjecting it to rigorous testing in
the context of an adversary proceeding before the
trier of fact."6

Face-to-Face Confrontation is Preferred,
But Not Guaranteed
Prior to 2004, the Pennsylvania Constitution
was more protective of criminal defendants'
confrontation rights than the U.S. Constitution,
expressly providing the right to confront witnesses
"face-to-face." However, the face-to-face
requirement was removed by a constitutional
amendment in 2004, and Pennsylvania now does
not afford any additional confrontation rights
beyond those granted by the Sixth Amendment.7
The U.S. Supreme Court's position on the
importance of face-to-face confrontation has
evolved. As recently as 1988, the U.S. Supreme
Court stated in Coy v. Iowa: "We have never
doubted . . . that the Confrontation Clause
guarantees the defendant a face-to-face meeting
with witnesses appearing before the trier of fact."8
However, the Court "left for another day . . . the
question whether any exceptions exist" to the
"irreducible literal meaning of the Clause: a
right to meet face to face all those who appear
and give evidence at trial."9 Two years later, in
Maryland v. Craig, the Court declared that the
Confrontation Clause "reflects a preference for
face-to-face confrontation at trial, a preference
that must occasionally give way to considerations
of public policy and the necessities of the
case."10 The Court ruled that testimony may be
given by a witness who is not face-to-face with
the defendant when (1) physical separation
is "necessary to further an important public
policy" and (2) "the reliability of the testimony is
otherwise assured."11

In Craig, the Court found both of these
requirements satisfied where a minor victim of
alleged sexual assault was permitted to testify by
one-way closed-circuit television, which permitted
the defendant and trier of fact to see the witness,
but did not allow the witness to see the defendant.
Applying the test set out above, the Court first
determined that the arrangement furthered the
important government policy of protecting abused
children from the trauma of testifying in the
presence of their alleged abusers.12 This finding
turned on the fact that a majority of states had
adopted measures to protect testifying minors in
such cases and "the growing body of academic
literature documenting the psychological trauma
suffered by child abuse victims who must testify in
court."13
The Court then considered whether the reliability
of the minor witness's testimony was assured
without being face-to-face with the defendant.
The Court explained that the confrontation
right includes four procedural aspects, each of
which increases the likelihood that the proffered
testimony is reliable:
1.	 Witness's physical presence;
2.	 Testimony given under oath "thus
	 impressing him with the seriousness of
	 the matter and guarding against the lie
	 by the possibility of a penalty for
	perjury";14
3.	 Witness can be subjected to cross	 examination; and
4.	 Witness's demeanor can be observed by
	 the trier of fact, which "permits the
	 jury that is to decide the defendant's fate
	 to observe the demeanor of the witness
	 in making his statement, thus aiding the
	 jury in assessing his credibility."15
In Craig, although the witness was not physically
present, she was under oath, the defendant was
permitted to cross-examine her, and the "judge,
jury, and defendant are [were] able to view (albeit
by video monitor) the demeanor (and body) of
the witness as he or she testifies,"16 Considering
these factors, the Court concluded that "the
presence of these other elements of confrontation
. . . adequately ensures that the testimony is
both reliable and subject to rigorous adversarial
testing in a manner functionally equivalent to that
accorded live, in-person testimony."17 Accordingly,
the Court held that the physical separation of the

Vol. 5, Issue 3 l For The Defense

7



For the Defense - Vol. 5, Issue 3

Table of Contents for the Digital Edition of For the Defense - Vol. 5, Issue 3

Contents
For the Defense - Vol. 5, Issue 3 - 1
For the Defense - Vol. 5, Issue 3 - 2
For the Defense - Vol. 5, Issue 3 - Contents
For the Defense - Vol. 5, Issue 3 - 4
For the Defense - Vol. 5, Issue 3 - 5
For the Defense - Vol. 5, Issue 3 - 6
For the Defense - Vol. 5, Issue 3 - 7
For the Defense - Vol. 5, Issue 3 - 8
For the Defense - Vol. 5, Issue 3 - 9
For the Defense - Vol. 5, Issue 3 - 10
For the Defense - Vol. 5, Issue 3 - 11
For the Defense - Vol. 5, Issue 3 - 12
For the Defense - Vol. 5, Issue 3 - 13
For the Defense - Vol. 5, Issue 3 - 14
For the Defense - Vol. 5, Issue 3 - 15
For the Defense - Vol. 5, Issue 3 - 16
For the Defense - Vol. 5, Issue 3 - 17
For the Defense - Vol. 5, Issue 3 - 18
For the Defense - Vol. 5, Issue 3 - 19
For the Defense - Vol. 5, Issue 3 - 20
For the Defense - Vol. 5, Issue 3 - 21
For the Defense - Vol. 5, Issue 3 - 22
For the Defense - Vol. 5, Issue 3 - 23
For the Defense - Vol. 5, Issue 3 - 24
For the Defense - Vol. 5, Issue 3 - 25
For the Defense - Vol. 5, Issue 3 - 26
For the Defense - Vol. 5, Issue 3 - 27
For the Defense - Vol. 5, Issue 3 - 28
For the Defense - Vol. 5, Issue 3 - 29
For the Defense - Vol. 5, Issue 3 - 30
For the Defense - Vol. 5, Issue 3 - 31
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For the Defense - Vol. 5, Issue 3 - 33
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For the Defense - Vol. 5, Issue 3 - 58
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