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  4.  » “IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL HAVE THE RIGHT…TO BE CONFRONTED WITH THE WITNESS AGAINST HIM.” Sixth Amendment, United States Constitution

“IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL HAVE THE RIGHT…TO BE CONFRONTED WITH THE WITNESS AGAINST HIM.” Sixth Amendment, United States Constitution

Justice Scalia reinforced an accused’s right to confront his accuser in the landmark case of Crawford v. Washington, 541 U.S. 36 2004. Prior to the Crawford decision, the Courts would allow a witness to testify to hearsay if it had a sufficient indicia of reliability. Scalia based his analysis on the actual wording of the sixth amendment which guaranteed an accused’s right of confrontation and therefor out- of-court statements made to police officers that are testimonial are inadmissible unless the declarant is unavailable and the accused had an prior opportunity to cross examine the witness whether or not the court deemed the statement to be “reliable.” A statement is testimonial if it relates to past events. Statements are non-testimonial when they are made to deal with an ongoing emergency. Davis v. Washington, U.S. 813 2006.

Since the Crawford decision, courts have struggled with whether certain statements are testimonial and therefore inadmissible or non-testimonial and therefore admissible. Despite clear guidance on this issue from the United States Supreme Court in a series of decisions after Crawford, Minnesota courts have consistently muddied the waters particularly in child sex abuse cases. The decisions seem to engage in a result oriented analysis involving disingenuous mental gymnastics to arrive at a decision that feels right. Specifically, child forensic interviews, commonly referred to as “Cornerhouse Interviews” have been held to be non-testimonial and admissible despite the accused’s inability to cross examine the witness. In cases where a child testifies at trial and the video statement is played to the jury, while problematic for its redundancy, it still does no harm to the concept of due process because a defendant is given the chance to cross examine. In those cases where a child is either too young or traumatized to testify, the inclusion of the video interview should be prohibited as violative of a defendant’s right of confrontation. A defendant cannot cross examine a video.

Admittedly, alleged child sex abusers enjoy little public sympathy. But all are presumed innocent until proven guilty by a system that vigorously defends the accused, no matter how heinous the allegations. Confrontation is designed to elicit the truth which is at the bedrock of our individual liberties and hence our democracy because it is only through the diligent representation of the accused, that the rights of average citizens are protected. Understandably, judges want to protect children as they are our most vulnerable citizens but they cannot do so at the expense of our constitutional rights. The simple test of what is testimonial and what isn’t should be the cornerstone of every analysis. This would lead to predictability for criminal defendants and prosecutors alike.

https://www.mnbar.org/resources/publications/bench-bar/articles/2020/10/01/child-sex-abuse-and-the-sixth-amendment