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Satisfying the Confrontation Clause Through Opportunity to Cross-Examine, Waiver, and Forfeiture

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Opportunity to Cross Examine

Producing the witness will satisfy the Confrontation Clause even if the witness cannot be cross-examined effectively. The Confrontation Clause guarantees only an opportunity to cross-examine witnesses. There is no right to meaningful cross- examination. Generally speaking, an opportunity to cross-examine a forgetful witness satisfies the confrontation clause. If, however, a witness is unable or refuses to testify (even though the witness is on the witness stand), it follows that the witness cannot be cross-examined.

Delaware v. Fensterer, 474 U.S. 15 (1985). The Court held that an expert witness’ inability to recall what scientific test he had used did not violate the Confrontation Clause even though it frustrated the defense counsel’s attempt to cross-examine him. “[T]he Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose these infirmities through cross-examination, thereby calling to the attention of the fact finder the reasons for giving scant weight to the witness’ testimony.”

United States v. Owens, 484 U.S. 554 (1988). While in the. hospital, the victim identified the accused to an FBI agent. At trial, due to his injuries, which affected his memory, the victim could only remember that he earlier identified the accused, but not the reason for the identification. The victim was under oath and subject to cross-examination; the Confrontation Clause was satisfied.

United States v. Rhodes, 61 M.J. 445 (2005). Witness against accused testified but claimed a lack of memory. The previous confession of the witness, implicating the accused, was admitted against the appellant with certain conditions. The defense argued that the appellant’s confrontation rights were violated because the witness did not “defend or explain” his statement as required by Crawford v. Washington. The court ruled that the Supreme Court’s Supreme Court of the United States’ previous case of United States v. Owens was not overruled by Crawford. By presenting the witness, the government met the confrontational requirements of the Sixth Amendment.

United States v. Gans, 32 M.J. 412 (C.M.A. 1991). The military judge admitted a sexual abuse victim’s statement given thirty months earlier to MPs as past recollection recorded (MRE 803(5)). At trial, the victim could not remember details of sexual abuse incidents. Appellant claimed that because the daughter’s recollection was limited, his opportunity to cross-examine was also limited. The Court of Military Appeals disagreed, relying on the Fensterer and Owens decisions that there is no right to meaningful cross-examination.


Affirmative waiver of confrontation by the accused will satisfy the Sixth Amendment. Waiver cases generally arise when the defense makes a tactical decision not to cross-examine a witness, then asserts a Confrontation Clause violation.

United States v. Martindale, 40 M.J. 348 (C.M.A. 1994). During deposition and again at an Article 39(a) session, a 12-year-old boy could not or would not remember acts of alleged sexual abuse. The military judge specifically offered the defense the opportunity to put the boy on the stand, but the defense declined. The confrontation was waived and the boy’s out-of-court statements were admissible.

United States v. McGrath, 39 M.J. 158 (C.M.A. 1994). The government produced the 14-year-old daughter of the accused in a child sex abuse case. The girl refused to answer the trial counsel’s initial questions but conceded that she had made a previous statement and had not lied in the previous statement. The military judge questioned the witness, and the defense declined cross-examination. The judge did not err in admitting this prior statement as residual hearsay.

The United States v. Bridges, 55 M.J. 60 (2001). The Court of Appeals for the Armed Forces (CAAF) held that the Confrontation Clause was satisfied when the declarant took the stand, refused to answer questions, and was never cross-examined by defense counsel. The military judge admitted the declarant’s hearsay statements into evidence. While a true effort by the defense counsel to cross-examine the declarant may have resulted in a different issue, the defense’s clear waiver of cross-examination, in this case, satisfied the Confrontation Clause. Once the Clause was satisfied, it was appropriate for the military judge to consider factors outside the making of the statement to establish its reliability and to admit it during the government case-in-chief under the residual hearsay exception.

Forfeiture by Wrongdoing

An accused may forfeit his right to confront a witness if he engaged in wrongdoing that was intended to, and did, procure the unavailability of the witness.

Crawford v. Washington, 541 U.S. 36, 62 (2004). “The rule of forfeiture by wrongdoing…extinguishes confrontation claims on essentially equitable grounds.”

Giles v. California, 128 S. Ct. 2678 (2008). The doctrine of forfeiture by wrongdoing requires the government to show that the accused intended to make the witness unavailable when he committed the act that rendered the witness unavailable. This is consistent with the Federal and identical Military Rule of Evidence 804(b)(6). It is not enough to simply show that the accused’s conduct caused the unavailability.

United States v. Clark, 35 M.J. 98 (C.M.A. 1992). The Accused’s misconduct in concealing the location of the victim and her mother waived any constitutional right the accused had to object to the military judge’s ruling that the victim was “unavailable” as a witness.

Forfeiture of hearsay rights versus confrontation rights. The constitutional doctrine of forfeiture and the codification of that doctrine in the evidentiary hearsay rules are related but functionally separate, concepts.

Military Rule of Evidence 804(b)(6) provides that “[a] statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness” is not excluded by the hearsay rule if the declarant is unavailable. The overwhelming majority of federal courts apply a preponderance of the evidence standard to determine whether an accused engaged or acquiesced in wrongdoing. 2 Stephen A. Saltzburg, Lee D. Schinasi, and David A. Schlueter, Military Rules of Evidence Manual 804.05[3][f] (2003).

Giles v. California, 128 S. Ct. 2678, 2686 (2008). “No case or treatise that we have found…suggested that a defendant who committed wrongdoing forfeited his confrontation rights but not his hearsay rights.”

United States v. Marchesano, 67 M.J. 535 (Army Ct. Crim. App. 2008). Indicates that an accused could forfeit his hearsay rights under MRE 804(b)(6) through wrongdoing by acquiescence but perhaps not his confrontation rights (confrontation forfeiture requires some intent or design on the behalf of the accused).

Standard of proof at trial for judge’s determination of forfeiture: Preponderance of evidence. United States v. Marchesano, 67 M.J. 535, 544 (Army Ct. Crim. App. 2008).

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