Sixth Amendment says a defendant shall have the right to face and cross-examine plaintiffs/witnesses in court. But does this only apply during a trial itself (a great many cases never go all the way to trial; they end in a plea bargain or guilty plea long before getting that far in) or does the defendant also get to confront his/her plaintiffs at earlier stages too, like discovery or something?
IANAL but from what I can tell the right to face your accuser is only ever at the trial itself. Even that has been limited a bit (e.g. a child may be allowed to testify via closed-circuit TV).
You have the right to know the name and address of your accuser during the discovery phase, which is before the trial and requires your lawyer to file a motion. The prosecution is supposed to give your lawyer access to the bases of the charges against you as well (recordings, photos, witnesses, ect . . .). I’ve seen where they give someone the name but the address is the police station or the jail, they do this to keep confidential informants (snitches) from being harmed. A good lawyer will question that practice and ask if the witness is actually in jail and push the point. Some departments will drop charges or let you pleas out if all they got is CI testimony against you because they don’t want to reveal an active source that is working for them.
Do a defendant’s rights also extend to his lawyer as well? For instance, would a law that says, “The defendant shall be allowed to cross-examine his accusers, but his lawyers will not be allowed to ask questions” be unconstitutional?
(The idea being that the lawyers would know much better which kind of questions to ask, so this would be denying the defendant effective legal counsel)
I believe it would be unconstitutional since the purpose of legal representation is to allow a defendant consul that understands the law better than a lay person could.
Also, since lawyers write the laws, which group of lawyers is going to band together and make being represented by a lawyer unconstitutional? More likely they would constitutionally require that you be represented by two lawyers.
Isn’t it pretty much standard now that the prosecution (which has the full resources of law enforcement investigation) must turn over whatever evidence it has to the defendant’s lawyers reasonably soon prior to trial? They can’t keep stuff secret, and spring it on the defense at trial.
IIRC, one of the things in the Duke Lacrosse case that got the prosecutor in serious trouble was that he neglected to pass on to the defense that the DNA evidence for the alleged victim’s rape kit did not contain the DNA from any defendant, but did contain male DNA. His excuse was “it was not from the defendants so it was not relevant to the case.” It was.
So to the OP - the defense lawyers can try to depose witnesses, but AFAIK (IANAL) they are not obligated to cooperate. However, if there are depositions to the prosecution, the defense will know their contents. And any police investigation files. While they may be able to hide certain details (i.e. what could identify an informant) if the missing information was important to the defense or prosecution and was withheld, it may form the basis for an appeal.
(and in order to lay a charge, I suppose the prosecution must have sufficient evidence that will allow the defense to prepare for trial. No such thing as “this guy’s a rapist, and we’ll tell any details of how, when and where when we get to trial, but lock him up for now…”)
Also, as I understand, the video link and not identifying juvenile victims, etc. usually applies to sparing young victims from excess public appearances and for not allowing publicizing that information - the defendant will know who the person is, time and circumstances. They would have to, to mount a reasonable defense.
The discovery phase is before trial - but it’s not immediately after arrest.
As far as I know ( IANAL), depositions don’t usually happen in criminal cases, unless there are special circumstances such as the witness potentially being unavailable for trial. * Depositions aren’t just interviews - they are taken under oath , the person being deposed is questioned by the side calling them as a witness and is cross-examined by the opposing side and the deposition results in a transcript. In most states , it appears that taking depositions in criminal cases requires the approval of the judge.
- “Potentially unavailable” doesn’t mean the witness may be out of town for a few days - it means the witness may die or be too ill to testify or leave the jurisdiction (voluntarily or otherwise) by the time of the trial.
Yes, but reasonable time. When a trial happens a year after the crime, the prosecutor cannot wait until the week before to dump the information on the defense, especially if they’ve had it for a year.
Doh! Yes, you’re right, I too IANAL. I suppose I meant “interview”. There is no obligation for any witness to submit to an interview by the defense or the prosecution; but they cannot refuse a subpoena to appear in court to testify. (They do have the option in court to “plead the fifth” if the evidence the are asked about is self-incriminating.)
But generally the one side or other has a good idea what the witness should be able to say, given all the other evidence in the case. If the witness may give surprise testimony not good for your side of the case, why call them? (The old saying for lawyers, “never ask a witness a question if you don’t know what they’ll answer”)
This brings up a idea I had. I was on a couple Joint organized Crime Task forces- the way way junior man on the totem pole, I found out my job was to shut the fuck up and crunch the numbers for the back up “99 counts of wire fraud and money laundering” charges. But they said that too often witnesses in those cases were silenced- killed or intimidated.
How Constitutional would it be to pass a law that in any case where the People thought the witnesses were in danger to allow a video taped recording of the witness- with the defendants lawyer present of course- which could only be used in the trial if said witness was killed or mysteriously disappeared?
They’d have to be under oath. So, basically a deposition. Courts may hold that’s okay under the confrontation clause. Or they may not. Typically, in the rare situation where a deposition is taken in a criminal case, it’s done for discovery purposes and not to preserve the testimony.
Washington’s rule is below. When I practices criminal law, I never had a case with a deposition and I don’t remember ever even hearing about one.
CrR 4.6
(a) When Taken. The Court may order a deposition when (1) the court finds that a prospective witness may be unable to attend or prevented from attending a trial or hearing, (2) a witness refuses to discuss the case with either counsel and the witness’ testimony is material and necessary, or (3) there is good cause shown to take the deposition. The court at any time after arraignment may upon motion of a party and notice to the parties, order a deposition and require that any designated books, papers, documents or tangible objects, not privileged, be produced at the same time and place. A witness who is sought to be deposed, or a party, may seek a protective order as provided in the Civil Rules.ruleId=272
Okay, so it could work, under controlled circumstances. The FBI and DEA guys kept going on about the cartels killing their witnesses.
“We think this guy is going to get murdered” doesn’t inspire confidence and might be too speculative to get a court order.
Here’s the text of the 6th Amendment:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”
There is a lot in there, and centuries of caselaw, so I’ll try and focus on just the OP’s concern over the Confrontation Clause (the right to “to be confronted with the witnesses against him” and it’s applicability to pre-trial hearings.
The Supreme Court has said, in Pennsylvania v. Ritchie, that: “The opinions of this Court show that the right to confrontation is a trial right, designed to prevent improper restrictions on the types of questions that defense counsel may ask during cross- examination.” So, as a general rule, the defendant has no right to “confront the witnesses against them” before trial.
However (it’s the law, so there is always an however), there are cases (Crawford v. Washington is the big one) that specifically hold that allowing the use of hearsay statements by an absent witness who testified, but was not cross-examined, before trial can violate the Confrontation Clause. This has had the effect, in practice, of prosecutors being more willing to allow cross examination of witnesses in pre-trial hearings, especially if there are questions of the witnesses future availability.
And, of course, I am not your lawyer and this is not legal advice.
I think it would clearly be unconstitutional, not because of Confrontation Clause, but because not allowing a lawyer to question a witness at trial would be a blatant violation of the Right to Counsel n the 6th Amendment.