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Sir Walter Raleigh lost his head, and we got the 6th Amendment Confrontation Clause

November 18, 2011

1. History, 2. Law, 6. Trial

Sir Walter Raleigh lost his head, and we got the 6th Amendment Confrontation Clause

So Wally – Sir Walter in front of his stuck-up wife – was pissed.  He spent 13 years in the Tower of London based upon hearsay evidence.  It seems that Spain was going to fund the ouster of King James I.  One of Wally’s pals, Lord Cobham, was going to go there, pick up a ton of money, and come back to England.  The money would be used to fund the insurrection.  The whole scheme fell apart.  Cobbie gets nailed.  Wally says he had nothing to do with it except one discussion with Cob.  At Wally’s trial, the prosecution introduces a written statement from the Cobster.  Dude was trying to save his own skin by implicating everyone else.  Wally went ballistic – he wanted that fool in front of him for cross-examination.  He wanted to confront his accuser.  The judge said they were using civil-law principles – imported from Rome – and not the English common-law principles even though they were in England and Rome had fallen centuries before.  The Romans didn’t care for confronting accusers, and that suited this judge just fine thank you very much.   The statement gets admitted into evidence, Wally is denied the confrontation, and he’s found guilty.  Hence, 13 years in the Tower.

Now it got a bit ugly.  Wally gets out and he’s still nursing a grudge.  He gets a ship and attacks a Spanish outpost.  He goes back to England, the monarchs of England and Spain get together, Wally is tossed back in the Tower, and then they cut his head off.  Sucked to be him.

All because he couldn’t cross-examine his accuser at trial.  And history tells us, btw, that he was innocent.  Cobbie was a lying fool.

Lots of issues came up over the ensuing centuries.  Wally became two pieces – Big Wally and Little Wally we called them – in 1618.  You can go up to our Colonial/Revolutionary Period when the Stamp Act was pimped out by England.  Lots of those prosecutions proceeded based upon the judge talking in private to witnesses.  The defendants never got a chance to challenge them.

So we wrote the Bill of Rights to wipe out that possibility.  Some states already had a confrontation clause in their constitutions.  In the US Constitution, the operative bit is in the 6th Amendment:

In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him

It’s a right.  Not a privilege.  Not something invoked only if necessary.  It is the default setting.  We can confront our accusers.  While exceptions have naturally arisen, the rule stands.  And in the early 1960s, the Confrontation Clause was incorporated to the States – so every criminal trial, state and federal, includes this same right.

The first thing to address is “confront.”  Very simple – it’s the right to cross-examine.  End of story.

Next, we need to understand “witness.”  That word has come to mean “testimonial evidence.”  The opposite, “nontestimonial evidence” includes, for example, business records.  Think inanimate objects, non-human, etc.

So someone gives “testimony” outside the courtroom, and the prosecution wants to introduce it as evidence at your trial.  It’s a transcipt or an audio recording or video.  You can’t cross that, and therein lies the problem.

The rule is that the person that gave the testimony must be unavailable and you must have had a prior opportunity for cross.  If those two conditions are satisfied, then the prior testimony can come in.  And the nature of the testimony is that it came from a previous hearing or a police interrogation.  If it didn’t, we’ll argue its admissibility on other grounds like being unreliable.

The quickest one first – “a prior opportunity.”  Assume you had your Preliminary Hearing.  This witness testifies.  You sat there and asked nothing.  That was your opportunity.  If the witness becomes unavailable, that testimony may find its way into your trial.

A witness is unavailable, according to the Federal Rules of Evidence, if:

  • He is privileged against testifying about the subject matter of his out-of-court statement;
  • He refuses to testify despite a court order;
  • He testifies that he cannot remember the statement’s subject matter;
  • He cannot be present to testify because of death, or physical or mental illness; or
  • He is absent, and the proponent of his statement has been unable to procure his attendance (or his deposition) by process or other reasonable means.).

I think you can perceive some games that could be played in those rules, but for the most part witnesses are available.  We could, for example, talk for quite a while on when a spouse can or cannot testify against her husband (that’s one piece of the “privileged” above).

The real issue returns, then, to the prior opportunity to cross.  Every opportunity to cross needs to be used to its fullest.  You never know if a witness is going to be at trial – and letting damning testimony get on the record without challenging it could be fatal.

The Confrontation Clause is a surprisingly active area in jurisprudence at present.  The line between “testimonial” and “nontestimonial” is being discussed – it actually isn’t as simple as human v. non-human.  The long-standing rule of “reliability” has been tossed but is sneaking back in.  More cases will come.  If you want to dive into it, here’s a recent law-review article.

For now, recognize that the opportunity to cross cannot be ignored.  We’ll argue the rest before trial.

“Confront the witnesses against you.”  That should be a t-shirt.

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About Clyde

Clyde is the lead attorney in the firm. Licensed to practice in 1993, he's also taught Constitutional and Criminal Law for several years at a private university, primarily at the Master's level.

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