Overview of the waiver:
- 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 a 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 defense declined. 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). 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.
- 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 National Institute of Military Justice 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.