Supreme Court didn’t do enough to make the ‘right to confront’ meaningful

Deep in the Constitution’s Sixth Amendment is an important but perplexing guarantee: that “In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.”  

That guarantee has always seemed a bit odd to me — perhaps less important than the right to a speedy trial, an impartial jury, or the assistance of counsel. However, I returned to it when, late last month, the Supreme Court issued a little-noticed decision, Pitts v. Mississippi, on the meaning and limits of the Confrontation Clause.  

The issue in the case had to do with the question of what legal standards should apply in a child abuse case when the prosecution wants to put a screen between the child witness and the defendant in order to prevent them from seeing each other. After Jeffrey Pitts was accused of sexually assaulting his daughter, she “testified at his trial — over Pitts’ objection but pursuant to a state law — from behind a screen.” When Pitts was convicted, he appealed, arguing that his Sixth Amendment right to confront his accuser was violated.  

The Supreme Court agreed. 

What I found instructive was the court’s insistence that in evaluating what to do in such a request, the trial judge must make a “case-specific” finding that using a screen would be necessary to protect the child from trauma that “would impair the child’s ability to communicate.” I think that the court got it right as far as that went. However, there are broader issues at stake, pertaining to the question of what makes truthful testimony possible, both inside and outside a courtroom.   

The Sixth Amendment’s Confrontation Clause appears to draw on a seemingly simple psychological insight. It is harder to lie about someone when you are talking to them face-to-face.  

Beyond that, the Confrontation Clause, as the Supreme Court explained in 1895, in Mattox v United States, “ensure(s) that witnesses … testify under oath and understand the serious nature of the trial process; allow(s) the accused to cross examine witnesses who testify against him; and … jurors to assess the credibility of a witness by observing that witness’s behavior.” 

More than a century later, the Supreme Court traced the roots of the Confrontation Clause “back to Roman times.” Later, it was thought necessary to remedy the kind of injustices that “occurred in the great political trials of the 16th and 17th centuries, when people were convicted on the basis of out-of-court statements.   

As the court explained in a 2004 case, Crawford v. Washington, “the principal evil at which the Confrontation Clause was directed was the … use of ex parte examinations as evidence against the accused.” Crawford made clear that the justification of the Confrontation Clause is not that it guarantees the reliability of witness testimony; instead, it is rooted in the belief that cross-examination of a live witness is the best process to help ensure its reliability.  

But as the Supreme Court put it in a 1990 ruling, “The Confrontation Clause does not guarantee criminal defendants an absolute right to a face-to-face meeting with the witnesses against them at trial.”  

In that case, the court allowed a child abuse victim to testify via closed-circuit television, after a trial court determined that “the child’s courtroom testimony would result in the child’s suffering serious emotional distress such that he or she could not reasonably communicate.” It decided that an exception could be made only after the trial court “heard evidence … (to) determine whether the procedure’s use is necessary to protect the particular child witness’ welfare,” and only if it found that “the child would be traumatized, not by the courtroom generally, but by the defendant’s presence; and … that the emotional distress suffered by the child in the defendant’s presence is more than de minimis.”  

This brings us back to Pitts. In its ruling last month, the Supreme Court decided that a Mississippi trial judge erred in relying on a state statute that made the use of screens in child abuse cases mandatory, though it might be “harmless error.” The court invited the judge to consider the particular circumstances of the Pitts case to determine whether or not the use of a screen prejudiced his rights. 

In Pitts, the question had to do with the particular nexus of childhood and trauma. But there is no reason why we should not ask about whether there are additional instances in which trauma or other factors may make it difficult, if not impossible, for a witness to “reasonably communicate.” Rather than assuming that anyone called to testify against a defendant in open court can do so truthfully and effectively, courts should adopt a more nuanced and contextual approach.  

I do not mean to invite wholesale abandonment of the right to confront adverse witnesses, or the creation of so many loopholes and exceptions as to make the right meaningless. Instead, by attending to the complexities and challenges that many witnesses face when they make accusations or give testimony in court, we may increase the likelihood that they will testify truthfully and still vindicate the rights of criminal defendants.

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College.