What should I say when I want to confront my accuser about the situation?

Rights to Confront Your Accuser in Criminal Charges

What should I say when I want to confront my accuser about the situation?

The correct way to confront your accuser as afforded under the 6th Amendment of the US Constitution.

Your Legal Rights to Confront Your Accuser or Witness

A defendant has many rights under the State and US Constitution. The 6th Amendment of the US Constitution affords the accused of the right to confront their accuser or witnesses against them.

Under the Arizona State Law A.R.S. 13-114 (3) a person is afforded the right to confront witnesses against them, in a criminal case, as prescribed by law.

It should go without saying, that this does not mean a person has right to physically or directly confront a person, outside of the criminal justice process. It means that a defendant has a right to confront witness against them as part of legal proceedings.

This is the most commonly and effectively done through cross-examination of a witness in trial, through the defendant’s criminal defense attorney. It involves questioning the witness regarding their testimony.

If these rights are violated, it may lead to suppression of the eyewitness identification or testimony. Violation of this right may lead to suppression of the witness testimony being used as evidence against a defendant.

Challenges to Witness Testimony
The Six Amendment also protects a defendant from being found guilty of a crime, “hear say” testimony.

Some questions regarding admittance of evidence for example “here say” testimony, the parties may negotiate or decide the matters during evidentiary hearings, or conferences.

If the Prosecution and Defense are in disagreement regarding the validity of a particular witness testimony, the judge may rule on whether or not it may be admitted.

Other factors may invalidate a witness statement or prove them less than accurate, before or during trial.

Validity of a testimony may be compromised due to such external factors including: influences by other people; obstruction of a witnesses view; length of time that has elapsed since the incident and the testimony; confusion; reduction of recollection of the incident by the witness; unbiased nature of the witness; lack of proper lighting to see the witness; inattention of the witness during the incident, distractions or noise surrounding the witness; stress and other circumstances. In these cases, the defense lawyer may file a motion to suppress that the invalid testimony or identification, from being admitted so that it may not be used against the defendant.

Nonetheless, other material evidence should be always be used to increase the validity of witness identification or testimony. Material evidence may include such things as photographs, surveillance video, fingerprints and DNA comparisons.


Burden of Proof

In absence of a “guilty” plea or conviction, a defendant is guilty until proven otherwise by a court of law. In order to get a conviction, the State of Arizona and Prosecution must prove “beyond a reasonable doubt” that a defendant is guilty of committing a crime.

If the prosecution wishes to use a witness statement or identification against the defendant, their defense attorney will usually examine this identification or testimony to confirm its validity. If the witness identification or testimony raises reasonable doubt due to invalidity, it may lead to suppression of this evidence, and in some cases, a dismissal of charges.

Criminal Attorney for defense of criminal charges in Mesa AZ

Any criminal charges in Arizona can potentially be serious. You should always consult a qualified criminal defense attorney before pleading guilty to any criminal offense. Although you may have been arrested, you are still presumed innocent by law.

You have the right to hire a lawyer to defend your charges. If retained, they will protect your rights; make sure you are treated fairly, and defend the charges against you. This will increase your chances of getting a favorable resolution in your case.

Additional Resources:

• The 6th Amendment of the Constitution

• Arizona State Legislature – Right to Witness Confrontation

• Arizona State Legislature – Presumption of Innocence
• Arizona Rules of Evidence – Recent Amendments

• Mesa AZ Municipal Court

If you “” this article please let us know with “+1”. Feel Free to subscribe and “Share”!

Law Office of James Novak4500 S. Lakeshore DriveTempe AZ 85282(480) 413-1499Free Initial ConsultationArizona DUI, DWI, Drunk Driving & Criminal Defense FirmServing Tempe, Phoenix, Mesa, Chandler, Gilbert, & Scottsdale AZ

Maricopa County

Source: https://blog.arizonacriminaldefenselawyer.com/the-right-to-confront-your-acc/

Responding to Accusations

What should I say when I want to confront my accuser about the situation?

Dear Crucial Skills,

I read Crucial Conversations and Crucial Accountability and have tried to implement the skills in the books, but I still have a hard time dealing with accusations.

The problem is that the first instinct when someone accuses you is to restore safety or use contrasting to solve the misunderstanding, but the accuser does not seem to be affected by those actions. Instead, they continue to draw incorrect conclusions about you or something you did.

I’m sure a lot of people experience this same issue. What am I missing here and what is the best way to reply to someone who wrongly accuses you?

Struggling with Accusations

Dear Struggling,

Thank you for raising this important issue.

Over the years, we’ve taught a variety of skills in our books and training, but only rarely have we written scripts or shot video examples where the conversation starts with the other person accusing you.

Of course, not all accusations are a. It might feel more a slight chiding or a gentle reminder. In this rather innocuous case, you can assess the feedback and adjust accordingly.

However, I believe the accusation you have in mind is more akin to a tense, sharply delivered statement that not only accuses you of malfeasance, but feels an attack.

As you fall under a verbal assault—say one that questions your reliability, integrity, or talent—it’s ly you’ll become angry in return.

When this happens, your natural response to what feels a mild physical threat is to move from your “know” to your “go” system and react in a defensive and also stupid way.

If you allow your “go” system to take charge, you will indeed, be less controlled and logical than is optimal for the circumstances and become blinded to most rational thought.

In addition, when someone questions your character, it serves as an emotional accelerant.

Between the perceived threat to your safety and the apparent attack on your character, you’re now pumping adrenaline, thinking with the most basic part of your brain, and neck deep in a shouting match or worse.

To best respond to an accusation or attack, start by dealing with your own growing anger. Cut it off before the adrenaline slips into your blood stream.

Take a deep breath and reinterpret the attack, not as a threat to your safety—unless it actually is, in which case you need to exit—but as a misunderstanding that has caused the other person to become frustrated or maybe even angry with you.

This switch helps you turn from being angry—you’ve judged them as bad and wrong and deserving of a good tongue lashing—to becoming curious.

When you become genuinely curious, you reignite your center for logic and reason and turn off your anger response. Now you want to know exactly why the other person drew such a harsh conclusion about you. Instead of an emotional defender, you’re now a relatively calm detective trying to get to the source of the other person’s anger.

The mystery you’re trying to solve is the following: “What exactly did I do that led you to that conclusion?” You’ll have to search for the answer because as soon as others become upset they’re very ly to lead with their conclusions or accusations against your character. It’s now your job to get to the behavior behind the accusation.

You may be tempted to start with a contrasting statement, but you’ll have to be careful not to end up with a correcting statement masked as a contrasting one. For example, “You say I can’t be trusted, but I believe you’re wrong!” (Bad) Or, “I didn’t intend to make you angry.

I was just trying to do my job.” (Better, but it still sounds defensive) Instead of starting with a contrasting statement, become a detective. Probe to find out the source of the other person’s anger. For instance, “I’m not sure what I did that led you to conclude I can’t be trusted.

Could you tell me exactly where I went wrong?”

Say this with sincerity laced with concern, but remain focused on the science.

What were your actual behaviors? By searching for the facts and avoiding the conclusions, it allows the other person to share his or her complete view of the circumstances. This serves two important purposes.

The accuser will have time to calm down—the adrenaline doesn’t go away in an instant—and you will learn more about the details of the situation.

In addition, when angry, the other person really wants to make sure he or she has been heard and understood. So, repeat back the details of the description to ensure you have them right.

Continue to probe for your action behind the conclusion. Left to their own, many people just move from sharing one conclusion to sharing another.

Try something : “So you think I was selfish? What part of what I did seemed selfish to you?”

As the other person begins to share the details of the precipitating event, avoid the temptation to correct any of their statements of fact until you’ve earned the right to do so.

By thoughtfully and carefully listening to his or her ugly and angry conclusions and eventually getting to the underlying facts, you’re now to the point where you can add your views. Take care; this puts you at risk once again. Don’t start with your corrections to his or her facts.

Instead, explain how you can see how the other person might have come to his or her conclusion, but you have a different view on the matter. Start by sharing the elements you agree with and then point out how you see certain elements differently.

This may be the time when you share your honest intentions: e.g., you weren’t trying to make this person look bad in front of the boss, you were simply trying to lend a hand.

Because you’ve taken care to sort out the facts, thoughtfully listen, allow the anger to subside, and tactfully share your view, you’re finally ready to engage in honest dialogue.

But know this process takes time and patience. Left to your own proclivities, you may want to fight back. This will fuel the fires of anger and is ly to confirm the other person’s existing poor conclusions about you.

Become a concerned detective, not a defender.

All the best,
Kerry

Source: https://www.vitalsmarts.com/crucialskills/2009/12/responding-to-accusations/

Impeachment and the Sixth Amendment

What should I say when I want to confront my accuser about the situation?

Steven Calabresi is an important figure in the US legal profession, the holder of a named chair at a top-flight institution (Northwestern Pritzker School of Law) and the Co-founder and Board Chairman of the Federalist Society.

  In a recent essay, “House Democrats Violate The 6th Amendment By Denying Trump A Public Trial,” available here, he makes an argument that the House impeachment inquiry is violating President Trump's Sixth Amendment rights, an argument that is so peculiar, and so contrary to elementary and fundamental constitution principles, that one has to wonder what he could possibly have been thinking and what could possibly have motivated him to put the argument forward.

Here's the basic gist of what he wrote:

“The nation is transfixed by the impeachment proceedings against President Donald Trump for purportedly using U.S. military aid to Ukraine to prompt that country to reopen a corruption into former Vice President Joe Biden's son.

What no one is focusing on is the fact that the Democratic majority in the House of Representatives is violating the president's constitutional rights.

The House majority is thus itself acting unconstitutionally and is seriously abusing its power.

Impeachment is a legal proceeding, and just as criminal defendants have constitutional rights in criminal trials so too does Trump have constitutional rights, which House Democrats are denying him.

For example, the Sixth Amendment gives criminal defendants the right to “a speedy and public trial.” House Democrats are trying Trump in secret and are denying him the right to a public proceeding….

The Sixth Amendment also guarantees criminal defendants the right to be “informed” of the charges against them. House Democrats are not informing Trump of the charges against him and are leaking salacious information to the press.  This, too, violates Trumps rights under the federal Bill of Rights.

Moreover, the Sixth Amendment guarantees Trump the right “to confront the witnesses against him,” which right House Democrats are denying to Trump.

The president has a right under current Supreme Court case law to have a public face-to-face confrontation with the witnesses against and to testify in his own defense.

House Democrats are denying the president that very basic constitutional right….”

Perhaps “no one is focusing on this” because it is utter nonsense, completely devoid of any apparent constitutional logic.

  Yes, impeachment is a “legal proceeding”—but it is not a criminal proceeding to which the 6th Amendment applies; yes, “criminal defendants” are guaranteed the right to a speedy trial, to be informed of the charges, to confront witnesses, etc.—but Mr.

Trump is not a “criminal defendant” in the impeachment proceedings, so Prof. Calabresi's claim makes no sense whatsoever.

To review, here's the text of the 6th Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”

The critical phrase, of course, is the first one, explicitly linking 6th Amendment protections to “the accused” in a “criminal prosecution.” There is more than a century's worth of precedent construing that critical limitation on the Amendment's scope.

  A “criminal prosecution” begins, and the 6th Amendment attaches, at the “initiation of adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment—because the initiation of such proceedings marks the commencement of the criminal prosecutions to which alone the explicit guarantees of the Sixth Amendment are applicable.” Moore v. Illinois, 434 US 22 (1977); Texas v. Cobb, 532 U.S. 162 (2001). And to constitute a criminal proceeding, there must be a threat of “actual imprisonment”—a substantial “deprivation of liberty.” Scott v. Illinois, 440 U.S. 367 (1979), Rothgery v. Gillespie County, Tex., 128 S. Ct. 2578 (2008).

Thus, 6th Amendment protections do not apply to:

  • proceedings involving “petty” (as opposed to “serious”) crimes, as measured by the length of the authorized prison term, Muniz v. Hoffman, 422 U.S. 454 (1975);
  • to misdemeanors (unless accompanied by prison terms for violators), U.S. v. Nachtigal, 507 U.S. 1 (1993);
  • prison disciplinary hearings, Minnesota v. Murphy, 465 U.S. 420 (1984);
  • parental status termination hearings, Lassiter v. Department of Social Services of Durham County, 452 U.S. 18 (1981);
  • juvenile delinquency proceedings, McKeiver v. Pennsylvania, 403 U.S. 528 (1971);
  • probation hearings, U.S. v. Nachtigal, 507 U.S. 1 (1993), Frank v. U.S., 395 U.S. 147 (1969);
  • summary courts-martial, Middendorf v. Henry, 425 U.S. 25 (1976);
  • asset forfeiture proceedings, Libretti v. U.S., 516 U.S. 29 (1995);
  • civil (as opposed to criminal) contempt proceedings, or civil proceedings generally, Turner v. Rogers, 564 U.S. 431 (2011)

because (and to the extent that) these are not criminal proceedings involving the prospect of imposing a punishment of “actual imprisonment” on the litigant.

The notion that the House's impeachment inquiry is, constitutionally-speaking, an “adversary judicial criminal proceeding” to which the 6th Amendment applies is, frankly, laughable and nothing short of ridiculous, the sort of mistake a 1L might make on a ConLaw 1 exam but not something one expects from an eminent law professor holding a position at a top law school. The impeachment inquiry is not an adversary judicial criminal proceeding because it is neither a “judicial” proceeding nor a “criminal” proceeding; it is a Congressional proceeding, and whatever the outcome may be it will not, and cannot, result in Trump's imprisonment or any deprivation of his liberty, but only in his removal from office. [Indeed, it would certainly be an obvious and egregious violation of the constitutional separation of powers were Congress to undertake a true criminal proceeding, a function reserved to the Judiciary.]

Whatever constitutional rules or norms might apply to the procedures undertaken as part of the impeachment inquiry—which is a complicated question about which reasonable people might disagree—they are not to be found in the Sixth Amendment, and Trump cannot invoke any of his “6th Amendment rights” (to demand a speedy and public trial or an impartial jury of the State and district wherein the crime shall have been committed, to be informed of the nature and cause of the accusation, to confront with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, or to have the Assistance of Counsel for his defense) in connection with that inquiry.

This is pretty elementary stuff—and it is inconceivable to me that someone as well-versed in constitutional law as Steve Calabresi would not recognize this as the constitutional nonsense that it so obviously is.

What we have then, perhaps, is another illustration of Trump Derangement Syndrome—an inability of otherwise sensible and thoughtful people to think clearly and logically about anything concerning this president.

And while life is too short to try to correct all the nonsensical notions that law professors come up with, this is not just ordinary constitutional nonsense, it is particularly pernicious constitutional nonsense.

We are in a portentous moment in the history of this country; it is ly that, for only the third time in 230 years, the House will pass Articles of Impeachment on to the Senate, and we will then witness a trial in the Senate of a sitting president accused of “high crimes and misdemeanors.

” Public opinion concerning the strength of the case, the seriousness of the charge(s), the fairness of the process, the credibility of the witnesses, etc., is—and should be—of critical importance to this undertaking. Law professors who want to contribute to the public debate and discussion about these matters surely have an obligation to get matters within their particular spheres of expertise—the laws and the Constitution—as right as they can, in order to assist the public in evaluating these questions and understanding these issues in the weeks and months ahead.

Source: https://reason.com/2019/11/12/impeachment-and-the-sixth-amendment/

Confronting Your Accuser: The Surprising Truth About Preliminary Hearings in Pennsylvania!

What should I say when I want to confront my accuser about the situation?

The Sixth Amendment to the United States Constitution provides that an all criminal prosecution the accused person has the right to confront the witnesses against him.

In addition to this constitutional amendment, the Pennsylvania Constitution, specifically Article 1, Section 9, also guarantees a person the right to confrontation.

Despite these constitutional protections an accused person does not enjoy these Rights at a preliminary hearing under Pennsylvania Rule of Criminal Procedure 542.

While the Rules of Criminal Procedure are never superior to the Pennsylvania or the United States Constitution, a recent Pennsylvania Superior Court decision in Commonwealth v. Ricker explained what makes preliminary hearings different and not subject to either the Sixth Amendment or the protections under our Commonwealth’s Constitution.  This decision applies to both misdemeanor and felony offense in Pennsylvania.

A preliminary hearing is an evidentiary pre-trial hearing in which a court must decide whether a prima facia exists against an accused individual. The standard of proof at a preliminary hearing is “more probable than not” and this is a much lower evidentiary standard than that at trial which is guilt beyond a reasonable doubt.

Because a preliminary hearing doesn’t determine guilt, the Pennsylvania Superior Court has said that an accused does not have either a state or federal constitutional right to confront the witnesses against him at a preliminary hearing.

 Hearsay is an extremely complicated legal topic and law school courses in evidence spend a considerable amount of time on it. Hearsay is an court statement offered for the truth of the matter for which it is asserted for.

Basically, without getting into the exceptions to hearsay, this legal principle prevents either side form introducing a statement of a person without that person coming into court to testify as to what he actually said at the time in question.

In the Ricker case the court said that Pennsylvania has always allowed hearsay at preliminary hearings because it’s not a trial. Despite the reasoning in the Ricker case, however, your attorney should object if the DA or prosecutor attempts to introduce hearsay at your preliminary hearing.

If the DA cites the Ricker case in their argument to your attorney’s objection your lawyer should distinguish the Ricker case from your situation. Distinguish means that your attorney must show how the Ricker case is different from your case.

In Ricker the hearsay evidence was a statement from a police officer about what the officer observed on the day in question.

The officer in Ricker was injured when the suspect shot him. If your case doesn’t involve a police officer witness and the hearsay is coming from some civilian witness (non-police officer) I highly recommend that your attorney object and argue that the prosecution not be permitted to use the Ricker case as a basis for admitting the hearsay.

Preliminary hearings are extremely important because even though your case is held for trial the arguments and evidence from a preliminary hearing often form the basis for pre-trial motions and possible defenses at trial.

If you have questions about preliminary hearings or criminal defense tactics I encourage you to watch one of my videos or read my free books.

Source: http://gambonelaw.com/library/you-always-dont-have-the-right-to-confront-your-accuser/

What should I say when I want to confront my accuser about the situation?

President Trump says he has the “right” to be confronted by his accuser. But legal experts say that constitutional right, which applies in criminal proceedings, does not extend to impeachment.

MARY LOUISE KELLY, HOST:

All right. President Trump is demanding to meet the whistleblower whose complaint prompted the impeachment inquiry.

That complaint led the president to tweet, quote, ” every American, I deserve to meet my accuser.

” As NPR's Sarah McCammon reports, the president appears to be referring to part of the Constitution that gives criminal defendants the right to confront their accusers in court.

SARAH MCCAMMON, BYLINE: The whistleblower's credibility has repeatedly been called into question by Republican members of Congress. Here is Senator Lindsey Graham this week on CBS's “Face The Nation.”

(SOUNDBITE OF TV SHOW, “FACE THE NATION”)

LINDSEY GRAHAM: We're not going to try the president of the United States hearsay. Every American has a right to confront their accuser.

MCCAMMON: Graham dismissed the whistleblower complaint and insisted the president should be able to confront that person.

(SOUNDBITE OF TV SHOW, “FACE THE NATION”)

GRAHAM: This seems to me a political setup. It's all hearsay. You can't get a parking ticket conviction hearsay.

MCCAMMON: But that right to face your accuser guaranteed in the Sixth Amendment to the Constitution wasn't written to apply to impeachment, says David Dorsen, a former assistant chief counsel on the Senate Watergate Committee.

DAVID DORSEN: This is not a criminal proceeding. It's a impeachment proceeding, and the rules of evidence don't apply.

MCCAMMON: Dorsen says this impeachment inquiry, announced by House Speaker Nancy Pelosi, is still in the early stages.

DORSEN: Documents can be introduced, and otherwise, matters can be presented that do not strictly conform to the rules of evidence.

MCCAMMON: Yale Law professor and former Obama administration lawyer Harold Koh says the purpose of the Sixth Amendment is pretty straightforward.

HAROLD KOH: It's designed to make sure that before someone goes to prison, that they get a chance to confront the person who has charged them with the crime.

MCCAMMON: And Koh says this ultimately isn't about the whistleblower, whoever they may be. It's about the documents and potential wrongdoing by the president.

KOH: This is a complete canard. The whole point of having whistleblower complaints is that whistleblowers point to problems, and the problems can then be revealed by documents. And then the person who is being charged has to demonstrate that the whistleblower is telling falsehoods through the documents.

MCCAMMON: For now, Trump should worry less about the whistleblower and more about the statements coming from his own legal team, says Larry Gibson, a law professor at the University of Maryland.

LARRY GIBSON: Well, you don't often have the person accused producing the smoking gun.

MCCAMMON: Gibson is referring in part to statements by Rudy Giuliani, the president's lawyer. Giuliani told Fox News that he was asked by the administration to speak to Ukrainian leaders about investigating the son of Trump's political rival, former Vice President Joe Biden.

(SOUNDBITE OF ARCHIVED RECORDING)

RUDY GIULIANI: You know who I did it at the request of? The State Department. I never talked to a Ukrainian official until the State Department called me and asked me to show it.

MCCAMMON: The White House itself released a summary of President Trump's call with the Ukrainian leader, which Professor Gibson says ly will become key evidence in any impeachment process. He says this is all extremely unusual.

GIBSON: Well, I've taught law for 47 years. I've (unintelligible) what many prosecutors and many defense attorneys. It is rare that you start the case with this kind of evidence against an accused produced and handed to you by the person accused. I mean, that just doesn't happen.

MCCAMMON: If the impeachment inquiry leads to a trial in the Senate, Gibson says President Trump and his lawyers will be able to respond to all the evidence presented against him. Sarah McCammon, NPR News, Washington.

Copyright © 2019 NPR. All rights reserved. Visit our website terms of use and permissions pages at www.npr.org for further information.

NPR transcripts are created on a rush deadline by Verb8tm, Inc., an NPR contractor, and produced using a proprietary transcription process developed with NPR. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

“,”author”:”Sarah McCammon”,”date_published”:”2019-10-01T20:36:00.000Z”,”lead_image_url”:”https://media.npr.org/include/images/-default-wide.jpg?s=1400″,”dek”:null,”next_page_url”:null,”url”:”https://www.npr.org/2019/10/01/766176669/legal-experts-say-the-right-to-confront-accusers-does-not-apply-to-impeachment”,”domain”:”www.npr.org”,”excerpt”:”President Trump says he has the “right” to be confronted by his accuser. But legal experts say that constitutional right, which applies in criminal proceedings, does not extend to impeachment.”,”word_count”:742,”direction”:”ltr”,”total_pages”:1,”rendered_pages”:1}

Source: https://www.npr.org/2019/10/01/766176669/legal-experts-say-the-right-to-confront-accusers-does-not-apply-to-impeachment

Tell It To My Face!: The Right to Face Your Accuser

What should I say when I want to confront my accuser about the situation?

This article was written in response to the Political Theory Project’s Constitution Day lecture on The Right to Face Your Accuser: Child Abuse and the Sixth Amendment.

Should courts treat a child’s testimony the same way they treat nonhuman evidence? It’s a cold and dehumanizing question at face value; treating one group’s testimony as different than another’s is an undeniable form of systematic discrimination.

However, when it comes to child abuse cases, the question of how we treat a child’s testimony is a more tend question than one might think. You see, the Sixth Amendment requires witnesses — including potential victims of child abuse — to testify in front of the alleged perpetrator.

In fact, under the Sixth Amendment’s Confrontation Clause, it’s the right of every defendant “to be confronted with the witnesses against him.

” While the definitive efficacy of this “say-it-to-my-face!” justice has yet to be proven in cases involving adults, it’s increasingly clear that the modern interpretation of the Confrontation Clause muddles the legal process in cases involving a young child’s testimony. In cases involving testimony from children under eight, it may be more humane and practical to consider their testimony the way we consider nonhuman evidence.

During the past half century, the Supreme Court has been tightening its definition of the Constitution Clause to realign with its origins in Roman and English common law. In 1965, the Court decided that Confrontation Clause applied to local governments, not just the federal government.

However, the Clause’s power as it applied to states was relatively weak for almost four decades with the Court allowing reliable, out-of-court statements or hearsay in Ohio v. Roberts. This meant that a witness did not need to be present in court to supply evidence. In 2004, the Roberts decision was overruled in Crawford v. Washington.

In his 9-0 majority opinion, Justice Antonin Scalia stated that the Roberts decision “departed from the historical principles” of the Framer’s by giving hearsay and testimony the same analysis in court even though hearsay was admissible according to a malleable standard of reliability.

In many cases, this tightening strengthens the rights of the accused often comes at little to no expense to witnesses’ rights and the legal process. Even in cases of child abuse, a child’s statements to a teacher or social worker about abuse are admissible under the Confrontation Clause, as clarified by Ohio v. Clark decision.

The controversy arises regarding the cross-examination of that testimony – can you cross-examine a child’s testimony? And if you can’t, how is the defendant’s right to face the accuser met?

The issue of cross-examination with respect to children is mainly one of balancing the rights of the defendant with a practical legal process. Developmental child psychology has shown that children under the age of 8 to 10 often have difficult responding to questions in a cross-examination.

For example, young children at a certain stage of cognitive development will reject the premise of hypothetical questions, leading to untrue testimony. This has led some to believe that the accused should be able to pick a licensed profession (e.g.

, a child psychologist) to cross-examine the child in a controlled situation outside of the courtroom. This psychologist could then testify in court the same way a forensic specialist would testify about fingerprints on a weapon.

This process would wall off children — and victims of child abuse — from the legal process, but it also treats their testimony as nonhuman evidence, preventing the accused from directly confronting the child.

Many view this treatment of children’s testimony as a stripping of the right’s of the accused and to some extent it is. However, the Court still has a long way to go in clarifying how the Confrontation Clause applies to children.

Between Roberts and Clark, it’s still unclear exactly who can collect evidence from children outside the court.

And other models that could be even more beneficial to children, such as the child advocacy center model, which provides a controlled, videotaped environment for a young child to testify to a qualified professional, are effectively off the table as the court has still not explicitly allowed videotape hearsay — previously allowed by the logic in the Roberts — since the Crawford decision. Regardless of future Supreme Court decisions, it’s clear that “say-it-to-my-face!” justice does not work as effectively with children.

Source: http://brownpoliticalreview.org/2015/09/tell-it-to-my-face-the-right-to-face-your-accuser/

Add a comment