Confrontation, Right of (Update)

Author:Robert D. Goldstein

Page 491

The Supreme Court has explained that the accused's Sixth Amendment right "to be confronted with the witnesses against him" has the primary function of furthering the trial's truth-determining process. But recent cases reveal conflicts over the best way to ascertain truth and competing visions of a trial's shape. Cases involving children especially have posed the question whether a dramatic and adversarial trial, with the accusing witness and accused as protagonist and antagonist, tends to produce the most accurate results. They have also posed the question of the extent to which values other than truth-seeking?such as protecting a witness from the trauma of trial?can supervene the confrontation right.

Taking its cue from Shakespeare's Richard II?"Then call them to our presence; face to face and frowning brow to brow, ourselves will hear the accuser and the accused freely speak" (1.1.15?17)?the Court in COY V. IOWA (1988) held that the core of the right, manifest in the Sixth Amendment's text, involves physical face-to-face confrontation between witness and accused. Keeping the dramatis personae together on the trial's stage contributes not only to honest testimony but to maintaining our dramatic sense of what a trial is: "There is something deep in human nature that regards face-to-face confrontation between accused and accuser as "essential to a fair trial." Accordingly, Coy held unconstitutional a statute allowing in all such cases a screen to obstruct a sexually abused minor witness's view of the accused.

MARYLAND V. CRAIG (1990) answered affirmatively the question Coy reserved: whether a court may employ such a device if it first makes an individualized finding that an important state interest justifies its use in a particular case. But Craig did not clarify whether protecting a witness from serious distress or trauma can justify a device that does not also aid truth-seeking by enabling a child, whom distress would otherwise render substantially unavailable, to testify. The device, upheld in Craig, altered the nature of the trial by mixing the media of stage and television: in the courtroom, the defendant, judge, and jury watched, via closed-circuit television, real-time pictures of the child testifying in another room in the presence of the prosecutor and defense counsel. In contrast to Coy, the Craig decision described face-to-face confrontation only as a preference and emphasized that the confrontation...

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