Chapter 5 - §2. Components of right of confrontation

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§2. Components of right of confrontation

The Confrontation Clause includes four basic components that operate together to help ensure that testimony from an adverse witness admitted against a criminal defendant will be rigorously tested at trial: (1) the adverse witness must be physically present with the defendant while testifying, (2) the adverse witness must testify under oath, (3) the adverse witness's demeanor must be observable by the trier of fact, and (4) the defendant must have the ability to cross-examine the adverse witness. See Maryland v. Craig (1990) 497 U.S. 836, 846. Generally, if any one of these components is missing at trial, the defendant's right of confrontation is violated. This right, with its accompanying components, is a trial right and thus does not apply to other types of criminal proceedings. E.g., Peterson v. California (9th Cir.2010) 604 F.3d 1166, 1169 (right of confrontation does not apply to preliminary hearings); Correa v. Superior Ct. (2002) 27 Cal.4th 444, 464-65 (right of confrontation is "basically a trial right"); People v. Gray (2d Dist.2021) 63 Cal.App.5th 947, 949 (pet. granted 7-14-21; No. S269237) (right to cross-examination at probation violation hearing governed by due process and not Confrontation Clause); People v. Stanphill (3d Dist.2009) 170 Cal.App.4th 61, 78 (right of confrontation does not apply to probation-revocation proceedings); People v. Cain (4th Dist.2000) 82 Cal.App.4th 81, 86 (right of confrontation does not apply at sentencing); see also People v. Dalton (2019) 7 Cal.5th 166, 232 (right of confrontation does not apply to dependency proceedings because they are civil in nature); In re Daniela G. (1st Dist.2018) 23 Cal.App.5th 1083, 1092 (parent in dependency proceeding does not have Sixth Amendment right to full confrontation and cross-examination but does have due-process right to meaningful hearing with opportunity to confront and cross-examine witnesses).


For purposes of the right of confrontation, the U.S. Supreme Court has defined "adverse witness" very broadly. An adverse witness is considered to be anyone called by the prosecution. E.g., Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, 313-14 (forensic analyst called by prosecution was adverse witness). There is no requirement that testimony from a witness called by the prosecution actually accuse the defendant of any criminal wrongdoing for the witness to be considered adverse. Id. at 313.

§2.1. Face-to-face confrontation. The Confrontation Clause generally requires that an adverse witness be subject to face-to-face confrontation during trial. See Maryland v. Craig (1990) 497 U.S. 836, 844; Coy v. Iowa (1988) 487 U.S. 1012, 1020-21; see also U.S. v. Carter (9th Cir.2018) 907 F.3d 1199, 1206-07 (face-to-face confrontation serves as symbol of fairness and promotes reliability). This right is not absolute, however, and can give way to other important societal interests. Craig, 497 U.S. at 849-50; People v. Gonzales (2012) 54 Cal.4th 1234, 1266. To dispense with the right of face-to-face confrontation, the court must make a case-specific finding that (1) it is necessary to further an important public policy and (2) the trustworthiness of the witness's testimony can otherwise be assured. Craig, 497 U.S. at 850; Carter, 907 F.3d at 1208. If the court finds that these requirements are met, special accommodations can be made for the testimony of specific witnesses as a substitute for face-to-face confrontation at trial. Craig, 497 U.S. at 855; see, e.g., Carter, 907 F.3d at 1208 (Confrontation Clause was violated; while victim could not travel because of temporary disability caused by her pregnancy, other alternatives to secure her presence could have been explored); People v. Arredondo (2019) 8 Cal.5th 694, 707 (Confrontation Clause violation when court positioned computer monitor to block D's view of 18-year-old witness; fact that witness was crying when sworn to testify was insufficient for trial court's accommodation order to obscure her from D's view); People v. Bharth (3d Dist.2021) 68 Cal.App.5th 801, 818 (accommodation to allow victim to turn chair and face jury did not deny D face-to-face confrontation; victim was in D's physical presence despite refusing to face him and would have been traumatized if forced to do so); People v. Sharp (1st Dist.1994) 29 Cal.App.4th 1772, 1783-84 (no Confrontation Clause violation when child sexual-assault victim faced away from D and defense table while testifying in court; state's interest in obtaining full and accurate account of events and protecting witness from emotional trauma was important enough to justify restriction), disapproved on other grounds, People v. Martinez (1995) 11 Cal.4th 434. Courts have found the following circumstances to be constitutionally acceptable:

1. Protection of children. Courts have allowed exceptions to the face-to-face requirement for children. For example, California law allows a child age 13 or younger to testify before the jury via a closed-circuit video feed if the child's testimony will involve a recitation of the facts of any alleged sexual assault or other designated felony and certain other findings are made after an...

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