What is the right to face witnesses?

The right to face witnesses, also called the right to confrontation, allows a criminal defendant to see and cross-examine the witnesses against them in open court. The Sixth Amendment, ratified on December 15, 1791, declares that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him. The right serves two main purposes: it permits the defense to test the credibility of accusing witnesses through cross-examination, and it ensures that statements offered against the accused are made under oath in the presence of the judge and jury.

The Supreme Court reshaped Confrontation Clause doctrine in Crawford v. Washington (2004). Justice Antonin Scalia wrote for the Court that testimonial statements made out of court generally cannot be used against a defendant unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. The decision overturned Ohio v. Roberts (1980), which had allowed admission of hearsay if it bore adequate indicia of reliability.

Subsequent decisions clarified what counts as a testimonial statement. Davis v. Washington (2006) distinguished between statements made to police during ongoing emergencies, which are not testimonial, and statements made after the emergency to gather evidence, which are testimonial. Bullcoming v. New Mexico (2011) and Melendez-Diaz v. Massachusetts (2009) required laboratory analysts to testify in person about test results rather than allowing prosecutors to introduce written certifications. Williams v. Illinois (2012) addressed expert witness testimony based on testing performed by others.

The right of confrontation can be limited in narrow circumstances. Maryland v. Craig (1990) allowed child victims of sexual abuse to testify by closed-circuit television when face-to-face testimony would cause severe emotional trauma, although this exception requires case-specific findings. Coy v. Iowa (1988) struck down a screen between a child witness and the defendant because the state did not make the necessary findings of necessity. Williams v. Florida (1970) upheld six-member juries in noncapital cases, distinguishing the size of the jury from the confrontation right.

Defendants who disrupt court may forfeit the right under Illinois v. Allen (1970), and defendants who threaten witnesses may forfeit the right by misconduct under Giles v. California (2008). The right ensures that a witness cannot accuse someone in writing or by recording without facing scrutiny in person. Naturalization candidates should know that this right is one of the foundations of the American adversarial system of justice.