Thursday, March 25, 2010

Sixth Amendment Right To Confrontation

The Sixth Amendment of the Constitution gives us the Right to confront our accusers in open court. However, the the government would often times simply attempt to use video taped interviews for certain witnesses rather than putting them on the witness stand. Recently the Supreme Court did away with this violation by the government. Crawford v. Washington, 541 U.S. 36 (2004. When statements are testimonial, the accused has a right to Confrontation.

There are some limitations to the Right to Confrontation. First, the statement must be testimonial. This is a term of art that is used by the court system. Your attorney should be able to determine whether the statement is testimonial or not.

Another limitation to the confrontation clause is that the accused can't be the cause of the failure to confront. This may happen in a situation where the accused attempts to threaten, or does threaten a witness. However, the burden is on the government to show this. Giles v Calif, 128 SCt 2678 (2008), requires the trial court to find: 1) the declarant is unavailable; 2) def engaged in wrongful conduct; 3) wrongful conduct procured unavailability of witness; 4) def intended to procure unavailability of witness. The Court also says the burden is on the state to prove this by a preponderance.

If you should have a question or a case that involves your right to confront an accuser, contact Patrick W. Flanagan.


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