The Right to Confront Evidence Used Against You!

When the Apostle Paul, on trial for various crimes, appeared at his trial, Festus said to the King, “[I]t is not the manner of the Romans to deliver any man to die, before that he which is accused have the accusers face to face and have license to answer for himself concerning the crime laid against him.”[1]  This Bible passage is the gist of the Confrontation Clause which provides that, “[In all criminal prosecutions, the accused, shall enjoy the right to] . . . be confronted with the witnesses against him.[2]

Prior to the birth of America, a criminal defendant during this time was not able to confront or dispute any witness(es) testifying against him or her.  One famous case from this time was the trial of Sir Walter Raleigh.  He was convicted of treason, based on the testimony of his alleged accomplice.  At his trial, Sir Walter Raleigh urged the court to present his alleged accomplice in court so that he may challenge his testimony face to face.  The court refused, and Sir Walter Raleigh was sentenced to death.  I

Keeping this history in mind, the Founding Fathers wanted to ensure the protection of criminal defendants.  The Confrontation Clause was drafted, specifically, to end “one-sided” examinations of evidence against the accused offered both in-and out-of-court.[3]  Of the 20 amendments proposed by James Madison, there is no record of anyone opposing the Confrontation Clause.

As stated above, the Confrontation Clause applies to statements made both in- and out-of-court.  With the opportunity to cross-examine, statements made in-court will almost always be met with the opportunity to dispute or confront a witness(es).  The interpretation of the Confrontation Clause and out-of-court statements, however, is not easy and fairly recent.  As a general rule, because a defendant cannot dispute or confront a witness who makes a statement out-of-court, offering this testimony as evidence could be a violation of the Confrontation clause.  However, prior to 2004, the Supreme Court decision in Ohio v. Roberts, permitted the admission of an out-of-court statement if it falls within a previously established hearsay exception, or is trustworthy.[4]  This proved problematic because there are almost 30 exceptions to hearsay.

Finally, in 2004, the Supreme Court issued a new interpretation of the Confrontation Clause.  In the landmark case of Crawford v. Washington, the Supreme Court ruled that “[T]he Confrontation Clause . . . bars the admission of testimonial statements of a witness who did not appear at trial unless he [or she] was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.”[5]  However, the Confrontation Clause is inapplicable in certain hearings.  For example, the Georgia Supreme Court has held that the Confrontation Clause is inapplicable to preliminary hearings[6] and the Supreme Court of the United States has found the Confrontation Clause inapplicable to revocation hearings.[7]

In addition to the above, the Confrontation Clause is specific, in that it only applies to testimonial evidence.  Testimonial evidence is simply defined as statements offered to prove the truth of the matter asserted.  To illustrate, in determining whether a specific 911 call is testimonial or not, the Georgia Supreme Court has established that the test, should consist of a determination of whether the primary purpose of the 911 call “is to establish evidentiary facts, so that an objective person would recognize that the statement would be used in a future prosecution.”[8]  Failure to satisfy this test means the statement is non-testimonial and outside the protection of the Confrontation Clause.[9]

The Confrontation Clause allows a defendant to test the memory, accuracy, and sincerity of a witness(es).  While, in some instances, the Confrontation Clause can be waived, these circumstances are extremely rare.  In addition to the complexity of the Confrontation Clause, the actual act of confronting a witness(es) or cross-examination is not an easy task.  In some jurisdictions, unlike Georgia, a defendant (and consequently the defense attorney) is only permitted to cross examine a witness(es) based on testimony provided during direct examination.  For this reason, and all those listed above, it is imperative that those facing criminal charges contact an experienced attorney, like the ones at Bixon Law.  Let our experienced criminal defense attorneys provide you with “Aggressive Criminal Defense” as we test and challenge any witness brought against you.  Contact us today and learn how we can help guarantee your rights.

[1] Acts 25:16 (King James Version).

[2] U.S. Const. amend. VI.

[3] Crawford v. Washington, 541 U.S. 36, 51 (2004).

[4] Id. at 51.

[5] Crawford v. Washington, 541 U.S. 36, 53-54 (1965).

[6] Gresham v. Edwards, 281 Ga. 881, 883 (2007).

[7] Ware v. State, 289 Ga. App. 860, 862

[8] Pitts v. State, 280 Ga. 288, 289 (2006).

[9] Id. at 289.