The First Freedoms
The Privacy Amendments
The 5th Amendment
The 6th Amendment
Civil Trials
The Interpretive Rules

Witness and Counsel in Criminal Trials

The Right to be Confronted with Adverse Witnesses

Courts of Admiralty

The 6th Amendment’s “Confrontation Clause” embodies the guarantee that “the accused shall enjoy the right…to be confronted with the witnesses against him.” Essentially, this means that the defendant’s accusers cannot give their testimony in secret; that the defendant cannot be excluded from his own trial; and ultimately that the defense must have an opportunity to cross-examine the prosecutor’s witnesses.

The American colonists were very protective of this right, largely because the British had denied it to them. Once the British discovered that they could not win a conviction from local juries when American defendants violated unpopular laws, they started bringing criminal cases in Courts of Admiralty. These courts allowed interrogatories (written questions) and the secret examination of witnesses. John Adams defended John Hancock in one such trial, and the use of such unfair procedures became one of the rallying cries for revolution. Consequently, several of the first state constitutions specifically protected the right of a criminal defendant to be confronted by the witnesses against him.

Sir Matthew Hale on Confrontation

Sir Matthew Hale, in his 1713 History of the Common Law, gave three reasons why the “confrontation” requirement was a valuable protection for the accused. First, the right was important so that the jury may judge a witness’s credibility by “the very Manner of a Witness’s delivering his Testimony.” Second, questioning the witness in person ensures that the jury gets the unvarnished testimony, rather than a version that might have been altered to serve the prosecutor’s case. Finally, Hale stressed the opportunity for cross-examination when the witness is questioned in person. According to his account, anyone in the court—whether judge, jury, the parties involved, or the attorneys on either side—should be able to question the witness. This method “beats and boults out the Truth much better than when the Witness only delivers a formal Series of his Knowledge without being interrogated.” In this last regard, the wording “be confronted with the witnesses” is misleading; the defendant has the right to actively confront the witnesses—to challenge them.