Introduction

Confronting Witnesses and Being Present

Introduction

The Sixth Amendment provides that in all criminal prosecutions the accused shall enjoy the right "to be confronted with the witnesses against him."¹ That clause sits in a list of trial guarantees that also includes a speedy and public trial, an impartial jury, compulsory process for obtaining favorable witnesses, and the assistance of counsel, each of which other readings teach.² Read for its working meaning, the confrontation guarantee gives the accused the chance to meet an accusing witness face-to-face and to cross-examine that witness.³ The phrase is short, but a trial lawyer can draw three separate practical questions from it, and the rest of this chapter is organized around them.

The objection in that scene is the first of three questions. The first question is whether the prosecution put an absent witness's out-of-court statement in front of the jury without testing it. The second is whether the defendant was in the room at the stages where the rules require presence. The third is whether testimony was taken, and argument made, in open court under the rules that govern each. The first question concerns what the jury hears and from whom, the second concerns where the accused is while the jury hears it, and the third concerns the setting in which testimony and argument take place.

The Confrontation Clause is the constitutional anchor for all three questions, and the Federal Rules of Criminal Procedure supply the working machinery. Rule 43 governs the defendant's presence, Rule 26 governs live testimony, Rule 15 governs depositions taken to preserve testimony, and Rule 29.1 governs the order of closing arguments. Each rule carries the same face-to-face value into a specific procedural setting, which is why presence and open-court material belongs in the same chapter as the doctrine on absent witnesses. The analysis of out-of-court statements comes first because it is the most heavily tested material, and the presence and open-court rules follow because they build on what that analysis establishes. The first task, then, is to ask what the right to confront witnesses actually secures, and the next section begins there.