Face-to-Face Confrontation Clause

The Confrontation Clause of the Sixth Amendment: The confrontation clause of the Sixth Amendment, made applicable to the states through the Fourteenth Amendment (Pointer v. Texas (1965) 380 U.S. 400, 403, provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.)" In Coy v. Iowa (1988) 487 U.S. 1012, 1016, the court, stressing the time-honored view that face-to-face confrontation was essential to fairness, observed "the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact. " The court held placing a screen between the complaining witnesses and defendant violated defendant's right to a face-to-face encounter. (Id. at p. 1020.) The court left for another day whether there were exceptions to the right of face-to-face confrontation. (Id. at p. 1021.) In Maryland v. Craig (1990) 497 U.S. 836, 857, the court held the confrontation clause did not prohibit a child witness from testifying against a defendant at trial, outside defendant's presence, by a one-way closed circuit television to protect the child from trauma that would impair the child's ability to communicate where the reliability of the evidence is ensured by subjecting it to rigorous adversarial testing. The requisite finding of necessity to depart from face-to-face confrontation must be case specific; the court must hear evidence and determine the procedure is necessary to protect the welfare of the particular child witness. (Id. at p. 855.) The court must find the child witness would be traumatized by the presence of defendant and that such emotional distress is more than de minimus. (Id. at p. 856.) Face-to-face confrontation does not require the witness to look at defendant: "The Confrontation Clause does not, of course, compel the witness to fix his eyes upon the defendant; he may studiously look elsewhere, but the trier of fact will draw its own conclusions." (Coy v. Iowa, supra, 487 U.S. at p. 1019 101 L. Ed. 2d at p. 866.) Numerous courts have held that, as long as the defendant and witness are present in the courtroom and their view of each other is not physically obstructed, as by a screen or two-way mirror, the Confrontation Clause is not violated by allowing the witness to testify while facing away from the defendant. (See, e.g., State v. Miller (N.D. 2001) 2001 ND 132, 631 N.W.2d 587, 594 witness not facing defendant; Smith v. State (Ark. 2000) 340 Ark. 116, 8 S.W.3d 534, 537-538 witness outside defendant's line of sight; State v. Brockel (La.Ct.App. 1999) 733 So. 2d 640, 644-646 witness with back to defendant; Brandon v. State (Alaska Ct.App. 1992) 839 P.2d 400, 409-410 witness seated in small chair perpendicular to defendant; State v. Hoyt (Utah Ct.App. 1991) 806 P.2d 204, 209-210 witness out of defendant's line of sight; Stanger v. State (Ind.Ct.App. 1989) 545 N.E.2d 1105, 1112-1113 witness chair angled towards jury, away from defendant, overruled in part on other grounds by Smith v. State (Ind. 1997) 689 N.E.2d 1238, 1246-1247, fn. 11; People v. Tuck (N.Y.App.Div. 1989) 147 A.D.2d 899, 537 N.Y.S.2d 355, 356 witness table facing jury; Ortiz v. State (Ga.Ct.App. 1988) 188 Ga. App. 532, 374 S.E.2d 92, 95-96 witness at 90 degree angle.)