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The right of confrontation

 A fundamental right that a defendant has in a criminal case is contained in the Sixth Amendment to the United States Constitution, which provides that “in all criminal prosecutions the accused shall enjoy the right to be confronted with the witnesses against him.”

This is commonly referred to as the “Confrontation Clause” and guarantees that a defendant has the right to the cross-examination of any prosecution witnesses to test the truthfulness of their testimony and to show any bias.

This amendment was ratified by Congress in 1791 because of the universal condemnation of the inquisitorial methods of the Star Chamber in England which did not provide such safeguards.

Michigan has had the same guarantees since we became a state in 1837.

The current requirements of the confrontation clause as to prosecution witnesses appearing at trial was announced in 2004 by the United States Supreme Court in Crawford v Washington which held that “the framers would not have allowed the admission of testimonial statements of a witness who did not appear at trial unless he was unavailable and the defendant had a prior opportunity for cross examination.”

In Michigan, unavailability is defined as a witness not testifying because of :(1) privilege; (2) refusal to testify despite a court order; (3) lack of memory; (4) death or physical or mental condition; (5) absence from the hearing despite diligent efforts to produce them.

The most common example of prior opportunity for cross examination is at a preliminary examination.

When a witness is deemed unavailable, any previous testimony is read at trial.

There are two situations when the confrontation clause doesn’t apply at all.

The first is a “dying declaration” when a person is unavailable as a witness, believes they are about to die, and makes a statement concerning the cause or circumstances of their death.

These statements can be used against a defendant if they implicate him or her.

The second is if the defendant by their wrongful conduct, intentionally caused the witness to be unavailable.

An obvious example of this is when the defendant is shown to have caused the potential witness’s death.

The confrontation clause ensures that defendants receive due process and a fair trial.

It has served us well for almost 230 years and will continue to do so.

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