Your Right to Confront Your Accuser in a Criminal Case

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Understanding Your Right to Face Your Accuser and to Confront Witnesses in Your Case

You probably know that if you’re charged with a crime, you have many important rights such as the right to remain silent and the right to trial. You may be aware that you have the right to confront witnesses against you as well, but many people misunderstand that right and don’t know that this right isn’t always what it seems. The Indianapolis Criminal Defense Attorneys at Banks & Brower take a closer look at this very important right.
The 6th Amendment to the United States Constitution provides that someone charged with a crime has the right “to be confronted with the witnesses against him.” This is known as the Confrontation Clause. Similarly, Article I, Section 13(a) of Indiana’s Constitution provides that an accused has the right “to meet witnesses face to face.” However, these guarantees are not as straightforward as they seem.
While it is generally true that you have a right to confront and cross-examine witnesses against you, there are circumstances where you may waive or otherwise lose that right. Unfortunately, few bright line rules exist that allow for a simple chart of exceptions. In general, however, ‘testimonial’ statements by people who do not appear for trial cannot be admitted unless the person making the statement is unavailable and the defendant had a prior opportunity to cross-examine the witness.
So what is a testimonial statement? To put it simply, it is a statement along the lines one would expect in a trial or investigation situation. “I saw George punch her,” or “The light was red when Katie drove through the intersection,” for example. Examples of non-testimonial statements would include calls to 911 or statements to police which are intended to allow for a response to an ongoing emergency.
Thus, these testimonial statements normally may not be admitted against a defendant unless the person making the statement is unavailable and the defendant had a prior opportunity to cross the witness. The next question, then, is when a person is unavailable for purposes of confrontation.
A common misunderstanding is that if a witness doesn’t show up for trial, his or her statements cannot be considered and the State may be left without much of a case. Therefore, people facing trial sometimes hope certain witnesses don’t show up for trial. However, if a witness does not appear and it can be shown that the defendant procured the absence of the witness in order to keep him or her from testifying, the witness’s statements may still be used against the defendant. So, where a defendant causes a witness’s absence, whether by threat or other means, not only may the statements come in, but the defendant won’t have the opportunity to cross-examine the absent witness. This is known as forfeiture by wrongdoing, and as Happy Gilmore would say, “Talk about your all time backfires.”
Witnesses may also be ‘unavailable’ if deceased, where privilege applies to testimony, where the witness refuses to testify despite an order to do so, where mental or physical illness prohibits testimony, or where the State has made a good-faith effort but nonetheless has been unable to procure the witness’s attendance. Other examples may exist depending on the jurisdiction and the circumstances of the particular case.
In order to satisfy the demands of the Confrontation Clause, before testimonial statements may be admitted the Defendant must have had a prior opportunity to cross-examine the witness. While sometimes the opportunity for cross-examination alone is enough, an unrepresented defendant who doesn’t cross a witness at a preliminary hearing likely will not lose the benefits of the Confrontation Clause solely on that basis. But where cross-examination (or its functional equivalent) has taken place, this aspect of the Confrontation Clause’s demands likely will be satisfied.
For example, consider that you and your attorney want to depose alleged victims or witnesses in your case. Not at all unusual in criminal cases, depositions are statements under oath where the defendant would have an opportunity to cross-examine a witness. A useful tool for preparing for trial or other purposes, depositions can also serve as the prior opportunity for cross-examination in the context of confrontation. Thus, if a deposed witness later becomes unavailable for trial, the deposition testimony might be admitted by the judge at trial. The cross-examination requirement may also be satisfied if the defendant had an opportunity to cross the witness at a preliminary hearing, or at a prior trial of the same matter (e.g. because of a hung jury, retrial after reversal on appeal).
Every case involving Confrontation Clause issues will be different, but the above factors will likely be determinative in whether or not testimonial statements will be admitted. These issues are usually more relevant for cases proceeding to trial, but where trial may be a possibility it is important to understand the potential implications of having deposed a witness and perhaps being stuck with the jury simply hearing the witness’s testimony read from a cold transcript.
The experienced Indianapolis Criminal Defense Attorneys at Banks & Brower have dealt with these issues in the courtroom and fight hard to protect your rights, including the right to confront and cross-examine witnesses, in order to ensure a fair determination of your guilt or innocence. If you or someone you know is facing criminal charges, give us a call anytime at 317-870-0019 or send us an email at