The Right to Confrontation of Witnesses and Compulsory Process
The right of an accused to confront witnesses against him is a very fundamental one. "There are few subjects," the U. S. Supreme Court has said, "upon which this Court and other courts have been more nearly unanimous than in their expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal."
Without this important Sixth Amendment right, no person on trial would be guaranteed the opportunity to cross-examine witnesses against him or have the opportunity to prove that such information was false. The trumped-up charges of faceless informers would prevail, and the right to a fair trial would become an empty promise.
The right to confrontation of witnesses applies to all defendants, in federal or state courts. The right is so fundamental that most, if not all, of the 50 states also include such a provision in their respective constitutions. It is expressed in our Missouri Constitution in Article I, Section 18(a), which states, "That in criminal prosecutions the accused shall have the right to . . , meet the witnesses against him face to face."
Over the years, this guarantee has been applied to various situations by the courts. On the basis of the confrontation clause, the courts have held that evidence given at a preliminary hearing could not be used at trial if the absence of the witness was attributable to the negligence of the prosecution. But if a witness' absence had been procured by the defendant, testimony already given at a previous trial on a different indictment could be used at a subsequent trial. The Supreme Court has emphasized that a major reason for the existence of the confrontation clause is to give "a defendant charged with crime an opportunity to cross-examine the witness against him" if at all possible.
Sometimes the exercise of the Fifth Amendment right against self-incrimination by a witness clashes with the defendant's Sixth Amendment right of confrontation. That was the case in Douglas v. Alabama, decided by the U. S. Supreme Court in 1965. In that case, the prosecutor called the defendant's alleged accomplice as a witness. The accomplice refused to testify because he pleaded his Fifth Amendment right against self-incrimination. The prosecutor then decided to "refresh" the reluctant witness' memory by reading a confession he had earlier made which implicated the defendant. The defendant objected, but was convicted and appealed. The U.S. Supreme Court ruled that the defendant's right to confrontation had been violated because the defendant had no way to cross-examine his accomplice with regard to the truth of the confession.
This right to confrontation, however, is not absolute. It may be lost by consent or even by misconduct. An example of the latter situation occurred in the case of Illinois v. Allen, which was decided by the U. S. Supreme Court in 1970. In that case the defendant, Allen, was on trial for armed robbery. Throughout the trial, Allen argued with the judge. Despite warnings from the bench, Allen continued his abusive and disruptive behavior. The judge finally ordered Allen removed from the courtroom, and he remained out of the courtroom for the balance of the prosecution's case. After his conviction on the charge, Allen appealed on the grounds that he had not been allowed in the courtroom when the prosecution called its witnesses and he was therefore denied his constitutional right to confront the witnesses against him.
The Supreme Court didn't follow Allen's reasoning when it ruled: " . . , we explicitly hold today that a defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive and disrespectful of the court that his trial cannot be carried on with him in the courtroom."
Another right that is related to the right of confrontation, and is every bit as fundamental to our concept of justice, is the right to compulsory process. The Missouri Constitution also provides this right in Article I, Section 18(a): "That in criminal prosecutions the accused shall have the right . . . to have process to compel the attendance of witnesses in his behalf . . ."
This provision requires, of course, that the defendant be afforded legal process to compel witnesses to appear. History also indicates that the provision was included to void the common law rule that in cases of treason or felony the accused was not allowed to introduce witnesses in his defense at all.
The Supreme Court affirmed the importance of this constitutional provision in its 1967 ruling in Washington v. Texas when it explained: "The right to offer the testimony of witnesses and to compel their attendance, if necessary, is in plain terms the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law."
These rights of confrontation of witnesses and compulsory process -- used to assure that the defendant has a way to present evidence favorable to his cause -- are two important ways the Constitution of the United States protects our right to a fair trial. Without them, meaningful justice would be difficult to find.