A defendant's right to confront accusers: How far does it extend?

The Supreme Court's answer could affect some murder, domestic-abuse, and child-molestation cases.

By Warren Richey | Staff writer of The Christian Science Monitor

from the April 22, 2008 edition

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WASHINGTON - The Constitution's Sixth Amendment guarantees criminal defendants the right to face their accusers in court.

But what happens when the accuser is not available for cross-examination at trial because she was murdered by the very person she would testify against?

On Tuesday, the US Supreme Court takes up a case in which prosecutors used a murder victim's prior statement to police about alleged domestic abuse to help convict the man who later killed her.

The justices must decide whether the California Supreme Court ruled correctly in allowing the jury to consider allegations made in a police report as reliable evidence, or whether their inclusion in the murder trial violated the defendant's right to confront his accusers.

The case, Giles v. California, is emerging as a major test of how state and federal judges are to enforce the Sixth Amendment's confrontation clause.

If the high court sides with the defendant, the decision could make it harder to win convictions in certain types of murder, domestic-abuse, and child-molestation cases. If the majority justices embrace a less restrictive view of the confrontation clause, it could raise the possibility of defendants being tried and convicted on unsworn allegations that they are powerless to refute.

Thirty-seven states, a number of battered women's groups, and child-abuse prosecutors filed friend-of-the-court briefs urging the justices to uphold the California Supreme Court ruling.

"This question has monumental implications for the conduct of state criminal trials," writes Illinois Solicitor General Michael Scodro in the states' brief.

Other analysts say it holds monumental implications for the Bill of Rights. "This is about First Principles," says Joseph diGenova, a Washington lawyer and former US attorney in the District of Columbia.

"I can't conceive of how the admissibility of this statement by this dead declarant will be upheld by the Supreme Court," he told a recent press briefing.

The confrontation clause is designed to foster a search for truth in a trial by guaranteeing every defendant the right to cross-examine his accusers. It helps a jury establish the truth from mere allegations.

The courts have recognized that in some instances, so-called hearsay evidence may be admitted when a witness is unavailable to testify. But in a major 2004 ruling, the US Supreme Court reinvigorated confrontation-clause protections, instructing the lower courts to reject hearsay exceptions in all but a few instances.

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