Testimony in Open Court

Testimony in Open Court

The preceding sections followed the defendant into the courtroom and asked when the accused must be there. The next question concerns the witnesses the defendant faces, and Rule 26 answers it with a default: in every trial, the testimony of witnesses must be taken in open court, unless a statute or rules adopted under 28 U.S.C. §§ 2072–2077 provide otherwise.¹ Those sections are the Rules Enabling Act, the channel through which the federal rules are adopted. The sentence therefore has two parts, a command that testimony be given live in the courtroom and a closed list of the sources that can excuse it. The second part matters as much as the first, because a judge's convenience, or the convenience of the parties, appears nowhere on the list. Together the two parts make up the rule of open-court testimony.

The default carries a long tradition with it. In Crawford v. Washington the Court contrasted the two systems behind the Confrontation Clause: English common law took testimony live, in court, subject to adversarial testing, while continental civil law condoned examination in private by judicial officers.² English practice at times borrowed from the civil-law side. Justices of the peace examined suspects and witnesses before trial, and those examinations were sometimes read in court in place of live testimony. Prisoners responded by demanding that their accusers be brought before them face to face, and the demand was sometimes refused, as in the 1603 prosecution of Sir Walter Raleigh.³ An open-court requirement keeps a federal trial on the common-law side of that line, because each accusation reaches the jury through a witness who must stand in the courtroom and answer.

Live testimony does specific work for the accused and the jury. In a passage from Mattox v. United States quoted in Ohio v. Roberts, the Clause envisions a personal examination and cross-examination in which the accused can test the witness's recollection and conscience, and the jury can look at the witness and judge by demeanor whether the witness deserves belief.⁴ The Court in Maryland v. Craig described the same machinery as a set of guarantees: the witness speaks under oath, which carries the threat of a perjury penalty; the witness must submit to cross-examination; and the jury watches how the witness behaves while giving the statement.⁵ Rule 26 sets the courtroom in which all of these operate at once, together with the accused's presence, which Rule 43 protects. Craig shows how much of that machinery the Constitution demands. The Court held that a child witness may testify by one-way closed-circuit television on a case-specific finding of necessity, because oath, cross-examination, and observation of demeanor remained and made the procedure functionally equivalent to live testimony.⁶ That ruling answers what the Clause tolerates. Rule 26 asks a separate question about authority, so a substitute that passes constitutional scrutiny still needs a statute or an adopted rule behind it to satisfy the open-court requirement.⁷

Confining exceptions to statutes and rules also rests on incentives. A party whose witness would fare badly under cross-examination has a reason to prefer a recorded or written account, and if trial judges could excuse live testimony case by case, such requests would arrive in many trials and the answer would turn on each judge's reading of the particular witness. Routing every departure through a statute or an adopted rule fixes the safeguards that accompany a substitute in advance and applies them alike to every case, so the substitute is never improvised at trial. The principal exception the rules supply is the deposition taken under Rule 15 to preserve a witness's testimony, which the next section teaches in detail.

Students most often lose this issue by reading the default as having no exceptions, or by finding an exception where none exists. The text answers both errors. Only a statute or a rule adopted under the rulemaking sections can displace live testimony, so a deposition taken under a rule of criminal procedure is a permitted departure, while testimony taken out of court merely because that would be more convenient has nothing in the text of the rule to support it.¹⁰

A related text sits in the same amendment. Alongside the confrontation guarantee, the Sixth Amendment gives the accused the right to a speedy and public trial, a separate guarantee taught in another reading.¹¹ Rule 26 addresses the manner in which witnesses give testimony, namely live and in open court, so a question about whether the public may attend a proceeding belongs to that other guarantee and should be kept apart from the Rule 26 analysis.