Wednesday, May 19, 2010

Confrontation Clause

Unless you're an attorney or a constitutional scholar, you might not have heard of the confrontation clause. This clause is part of the 6th Amendment. Basically it means a defendant has the right to face his accuser. For you really nerdy types, this clause was made available to the States by way of the 14th Amendment.

If a defendant shoots someone, the victim has to come to court, point at the defendant, and say "it was that person who shot me." There are exceptions, but this is usually true. I am sure this isn't a surprise to most of you.

Our criminal legal system puts a lot of stock in the right to cross-examine. Cross-examination is the courtroom confrontation of a witness. See the tie-in? What is cross-examination? Typically it's when the defense attorney questions the State's witnesses (or confronts them).

If the defense presents any witnesses, the State gets to cross them. In general, the 2nd party to question a witness is usually cross-examining them. What's the difference?

The most obvious one is that on cross, leading questions are allowed. Leading questions are asked in the way that the answer is suggested in the question. Here are examples of a direct (non-leading question), and a cross (leading question) seeking the same information.

Direct: "How old are you?"

Cross: "You're 35, correct?"

The difference may appear subtle. But in a courtroom with a skilled cross-examiner, they are worlds apart. Why do we want to cross-examine? We want to test for biases (a reason to tell the story one way or the other) and perception (could the witness have seen what he testified he saw). There are other reasons, but those are the big 2.

"You owe the defendant $10,000, don't you?"

 "You were around the corner when the shooting happened, correct?"

On cross, the lawyer does most of the talking. If cross is being done correctly, the witness just sits there and answers "yes" to almost every question. In effect, the lawyer is testifying, not the witness.

This give the defense attorney the opportunity to teach the jury about the case from the defense perspective. The defense attorney can use words and phrases to aid the jury in understanding the case better.

Watching a highly skilled cross-examiner is a thing of beauty. I am still working on it. I definitely know what not to do. This keeps me from stepping in it. But my timing and instinct still needs more work.

Our system usually disallows out of court statements as evidence. This is commonly known as hearsay. Most trial lawyers don't understand hearsay rules completely. I doubt I do.

Hearsay is defined as "an out of court statement offered to prove the truth of the matter asserted." What does that mean? Good question. Here is an example of hearsay. A witness testifying in a murder trial as follows "Billy told me he saw the defendant kill the victim." That is hearsay. It's an out of court statement, obviously. And it's being offered to prove the truth of the matter asserted, that defendant killed the victim.

We don't allow evidence like this in at trial because Billy was not subject to cross-examination by the defendant's attorney. There are a huge number of exceptions to the hearsay rule, but I am not going to even get into them here.

Curiously, however, the above statement could be allowed in to show Billy and the witness had a conversation at some time after the murder. Why? It would not be offered to prove the defendant killed the victim, but rather just to show a conversation took place. Again, confusing I know.

A recent Illinois case dealt with the confrontation clause. In this case, the defendant was charged with the domestic battery of his wife. At trial the wife was unavailable to testify. The State sought to introduce the 911 call where the wife says the defendant hit her numerous times.

Does the confrontation clause apply? Based on what I have written so far, you might think so. The defense objected to the admission of the call. The legal test is that only statements that are testimonial in nature are barred. What is testimonial in nature? Good question.

The trial court ruled most of the 911 call was non-testimonial. However, the part of the call where the wife said the defendant had hit her was barred. The State appealed that ruling. And the Appellate Court, siding with the State, reversed the trial court's ruling.


In short, prior court rulings have held that 911 calls were non-testimonial because the caller was describing an emergency. Also the 911 dispatcher did not ask questions designed to elicit incriminating statements about the husband, but were asked rather to determine if the caller needed immediate medical treatment.

If you think like a defense attorney, this ruling might sound a little off. The wife is not there to be cross-examined, but her statement that the defendant hit her numerous times is going to be allowed. I don't like it. This seems like an end-run around the confrontation clause. 

The court in this case, however, wrote that their ruling only extended to whether or not the confrontation clause bars the admissibility of the wife's statement the husband beat her. The court goes on to write "We express no opinion on any possible alternative objections to this evidence (whether grounded in the hearsay rule or other evidentiary principles). Any such objections that defendant chooses to raise may be taken up at trial.

Hmmm. Why would the Appellate Court put that language in a decision?

I think they are hinting there are other ways to keep the statement out. In other words, they are throwing the defendant's attorney a bone. Or a ray of hope.

I like it when courts do this. Was it hearsay? Um, maybe.


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