§ 36.06 KEY POINTS

• Jurisdiction: North Carolina

§ 36.06. KEY POINTS

There are several aspects to the Confrontation Clause. First, the right of confrontation includes the right of the accused to be present at trial. Second, it guarantees the accused the right to face adverse witnesses ("face-to-face" confrontation). Third, the defendant also has the right to cross-examine these witnesses. Finally, the hearsay rule, by permitting the admission of evidence without the cross-examination of the declarant, raises confrontation issues.

Right to be Present at Trial

The right of confrontation guarantees an accused the right to be present during trial, a right that may be forfeited by disruptive behavior or the accused's voluntary absence after the trial has commenced.

Right to "face-to-face" Confrontation

The Supreme Court has held that the right of confrontation requires "face-to-face" confrontation. However, this right is not absolute. In Maryland v. Craig, the Court upheld a statutory procedure that allowed the use of one-way closed-circuit television for the testimony of a child witness in a sexual abuse case. Significantly, the trial court made a fact-specific inquiry to determine whether the child would be traumatized by testifying in the presence of the accused.

Right to Cross-Examination

The Supreme Court has frequently stated that the primary interest secured by the Confrontation Clause is the right of cross-examination. Many of the Court's cases have involved limitations on the elicitation of bias impeachment on cross-examination. These limitations have invariably been struck down.

Confrontation and Hearsay

Since a hearsay declarant is, in effect, a witness, a literal application of the Confrontation Clause would preclude the prosecution from introducing any hearsay statement, notwithstanding the applicability of a recognized hearsay exception. The Supreme Court has never adopted such an extreme view. The Clause also could be interpreted as requiring only the right to cross-examine in-court witnesses and not out-of-court declarants. Under this view, all hearsay exceptions would satisfy constitutional requirements. The Supreme Court also has rejected this view. Instead of either of these two approaches, the Court has attempted to steer a middle course.

In Crawford v. Washington, the Court jettisoned nearly 25 years of confrontation jurisprudence by overruling Ohio v. Roberts. Crawford rejected reliance on reliability as a relevant factor under Confrontation Clause analysis. Instead, the Court focused on...