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There are few topics in the criminal justice arena that get the masses’ blood boiling as much as sexual assault and the “rights” of those accused of these horrible crimes. When it comes to rape, people generally don’t care about the rules or the Constitution or the fact that no matter how awful and hideous the crime, the procedures must be followed. Which is why we end up with stories like the one I linked to yesterday from the State of Washington:
Of course, even those accused of horrible crimes are entitled to a defense. And just because someone is accused of being a rapist doesn’t make it so. But victims also have rights, and asking them to relive the trauma of a sexual assault via a cross-examination by the perpetrator sure seems to be a violation of them.
Thankfully, there have been efforts to address the situation. Last year, a bill was introduced that would appear to protect defendants’ and victims’ rights alike by allowing the former to question the latter via closed-circuit television or through a surrogate attorney. And while the bill stalled in the state legislature, a similar proposal is expected to be reintroduced in the next legislative session — and recent events ought to persuade previously skeptical politicians.
This is stupid in so many ways, it hurts the brain. How? Let me count the ways. First, as I’ve written extensively, there’s the Constitution:
In all criminal prosecutions, the accused shall enjoy the right to [...] be confronted with the witnesses against him.
That right of confrontation is “the right physically to face those who testify against him, and the right to conduct cross-examination.” Pennsylvania v. Ritchie, 480 U.S. 39 (1987).
The reasoning is explicit and clear: to have the person making the allegation face the defendant and the jury and look them in the eye. After all, if you’re going to accuse someone of a crime, at least have the conviction to do it face to face:
As the United States Supreme Court has asserted, a defendant’s “literal right to `confront’ the witness at the time of trial … forms the core of the values furthered by the Confrontation Clause.” California v. Green, 399 U.S. 149, 157 (1970); Delaware v. Fensterer, supra; Davis v. Alaska, supra, 315; Dowdell v. United States, 221 U.S. 325, 330 (1911). The clause was originally conceived as a safeguard “to prevent depositions or ex parte affidavits … being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.” Mattox v. United States, 156 U.S. 237, 242-43 (1895); see also 5 J. Wigmore, Evidence (3d Ed. 1940) §§ 1365, 1367.
But in almost all cases, this confrontation is had between the accuser and the defendant’s lawyer. The lawyer, who is trained and well-versed in the rules of evidence and who will keep the questioning relevant and professional. The concern in the story that’s the focus of the post is pro-se questioning by defendants, who tend to go off the rails and sometimes seek to bully, embarrass and badger witnesses. Or ask completely irrelevant questions and upset the whole trial. Sure, that’s a concern. But that’s a concern with anything a pro-se defendant does. And here, yet again, there’s that pesky constitution:
The Sixth Amendment includes a compact statement of the rights necessary to a full defense:
“In all criminal prosecutions, the accused shall enjoy the right . . . 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 defence.”
Because these rights are basic to our adversary system of criminal justice, they are part of the “due process of law” that is guaranteed by the Fourteenth Amendment to defendants in the criminal courts of the States. The rights to notice, confrontation, and compulsory process, when taken together, guarantee that a criminal charge may be answered in a manner now considered fundamental to the fair administration of American justice— through the calling and interrogation of favorable witnesses, the cross-examination of adverse witnesses, and the orderly introduction of evidence. In short, the Amendment constitutionalizes the right in an adversary criminal trial to make a defense as we know it. See California v. Green, 399 U. S. 149, 176 (Harlan, J., concurring).
The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense. It is the accused, not counsel, who must be “informed of the nature and cause of the accusation,” who must be “confronted with the witnesses against him,” and who must be accorded “compulsory process for obtaining witnesses in his favor.” Although not stated in the Amendment in so many words, the right to self-representation—to make one’s own defense personally—is thus necessarily implied by the structure of the Amendment. The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails.
Faretta v. California. As Justice Scalia put it, concurring in Maryland v. Craig, there are few rights that are this explicitly stated in the Constitution: that the defendant has the right to represent himself and he has the right to confront his accuser face to face.
In fact, as regular readers and criminal defense attorneys are aware, the only circumstance in which courts have upheld barring a defendant from the physical presence of the complaining witness is in cases of child sexual abuse. And even in those cases, it is only because the defendant’s representative – his attorney – is physically present in the same room as the complainant and thus able to satisfy the Constitutional mandate.
What’s more disturbing about this – or perhaps just an item of curiosity to others – is that the link above is to Change.org, an organization that, up to now, has been seemingly dedicated to sensible and practical reform to the criminal justice system. It’s a site that I’ve had in my feed reader for a long time now and I’ve linked to them before, with approval. Maybe this is an aberration, reflecting the view of the individual contributor. Maybe, as Scott says, we should be careful of the Change we might get (I’ve lost all hope of getting any Hope):
So where do we find this thing called “common sense?” Is there a book, a list maybe, where all the people are surveyed and someone writes down the things we agree upon? Of course, “common sense” is that game we all play with ourselves, justifying why things we believe in are right when others, who act, behave, believe differently are wrong, and we can’t explain why.
Many folks here, from criminal defense lawyers to those who have suffered at the hands of the criminal justice system, have some very clear, very strong, views that change is needed. They are incredibly good, as am I, at tearing down the things we feel are wrong.
The problem, however, is what we build to replace it, and that’s a problem not easily solved. Stop screaming for Justice, or arguing that it’s just common sense. There’s a possibility you may get what you ask for, and you’re not going to like it.
But what’s clear is this: if there is a problem of abuse of the system by pro-se defendants and harassment of complainant’s in the courtroom, this is not the way to put an end to it. Trial judges have absolute authority to maintain order and decorum in the courtroom. If the pro-se defendant gets out of hand, they have the ability to put an end to it and I’m pretty sure almost every appellate court will agree with them.
But to trample core – and plainly stated – Constitutional rights just because the complainant doesn’t want to face the accused? That’s a change in the wrong direction.
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