Criminal Law Newsletter: Defendant's Rights: Right to Confrontation

Under the Sixth Amendment to the United States Constitution, a defendant has a right to confront his or her adverse witnesses. This means that the defendant has a right to a face-to-face meeting with the witnesses. Included in this right is the right to cross-examine the witnesses. If the defendant is denied his or her right to cross-examine the witnesses, the defendant's right to due process under the Fourteenth Amendment to the United States Constitution may also be denied.

A defendant's right to cross-examine witnesses means that the defendant must be given an adequate opportunity to cross-examine the witnesses. It does not mean that an adequate cross-examination of the witnesses must be conducted.

Once a defendant has exercised his or her right to cross-examine witnesses, the manner and extent of the cross-examination of the witnesses is left to the sound discretion of a trial court. Although the defendant is entitled to pose questions to the witnesses that may indicate bias, motive, or ill will on the part of the witnesses, the defendant's cross-examination should be relevant and should have some probative value. Some trial courts limit cross-examination to the scope of a direct examination. Other trial courts do not allow cross-examination on matters that are collateral to the issues in a case.

The test of whether a trial court improperly restricted the scope of cross-examination is whether the trial court properly balanced the probative value of the evidence that is sought by the cross-examination against the risks of the evidence being admitted. Such risks include undue prejudice, harassment of a witness, the witness's safety, undue delay, or confusion of the issues.

If a trial court limits the scope of a defendant's cross-examination of a witness, the defendant's counsel should file an objection on the record, which objection will preserve the matter for purposes of an appeal. However, an appellate court normally reviews such type of an objection under a harmless error analysis. A harmless error analysis means that unless the trial court's limitation of the scope of the cross-examination prejudiced the defendant's substantial rights or the outcome of the defendant's trial, the defendant's conviction will not be disturbed on appeal.

Even though a defendant has a right to confront witnesses under the Sixth Amendment to the United States Constitution, the right does not take precedence over all other rights. The defendant's right to confront witnesses is subject to a witness's privilege against self-incrimination under the Fifth Amendment to the United States Constitution. The witness's privilege against self-incrimination applies to any testimony that the witness reasonably believes could lead to his or her criminal prosecution including a prosecution for perjury. However, a trial court is entitled to inquire into the validity of the witness's assertion of the privilege and to compel the witness to answer the defendant's questions if the witness's answers could not be considered incriminating.