MASSBAR
The National Trial Lawyers

Confrontation

The Sixth Amendment to the United States Constitution and Article 12 of the Massachusetts Declaration of Rights guarantee a criminal defendant’s right to confront the witnesses against him. This ordinarily means a witness who is providing incriminating evidence against a defendant is required to testify under oath, in open court before the jury, and be cross-examined by the defendant’s attorney. However, there are certain exceptions that sometimes allow evidence to be presented without the live testimony of the witness.

Forfeiture by Wrongdoing

In Massachusetts, an out-of-court statement by a non-testifying witness may be admissible against a criminal defendant if the prosecutor can prove by a preponderance of the evidence that: (1) the witness is unavailable to testify; (2) the defendant is responsible for, or involved in, causing the witness to be unavailable; and (3) the defendant intended to procure the witness’ unavailability. The legal theory behind the forfeiture by wrongdoing doctrine is that a defendant should not benefit from improperly making a witness against him unavailable to be confronted at trial.

The doctrine is triggered most often by defendants – held in jail pending trial – who call witnesses to ask them not to appear in court to testify. All Massachusetts jails record the phone calls made by prisoners and prosecutors often listen to recordings of the jail calls. As soon as a defendant suggests a witness should ignore a trial summons from the Commonwealth, all statements previously made by that witness to the police are likely going to be admissible under the forfeiture by wrongdoing doctrine.

Massachusetts appellate courts have determined a defendant’s attempt to urge a witness not to testify does not need to constitute a criminal act. For example, the doctrine might apply to a defendant who marries his victim of domestic violence to provide her with a marital privilege not to testify against him. The doctrine might also apply to a defendant who suggests a victim assert her Fifth Amendment right not to testify – even if the victim has already decided on her own to assert her Fifth Amendment privilege.

Prior Opportunity to Cross-Examine

If a witness is unavailable to testify at trial, but she previously testified under oath and was cross-examined by the defense attorney, her prior testimony might be admissible at the defendant’s trial. For example, if the Commonwealth moves for pretrial detention at the defendant’s arraignment and the victim testifies at the detention hearing, the defense attorney will have an opportunity to cross-examine her. If the victim dies (or otherwise disappears) before the trial, her testimony from the detention hearing will likely be admissible, and the defendant’s confrontation rights will have been protected because the defense attorney was able to cross-examine her at a prior proceeding.

Testimony from grand jury proceedings are not admissible in this situation because defense attorneys are not permitted to be present at the grand jury, and witnesses are not subject to cross-examination.

Expert Witnesses

Prior to 2009, Massachusetts prosecutors were permitted to introduce lab results in drug cases (establishing the substances were, in fact, illegal drugs) without calling the analysists to testify. That changed in a case called Melendez-Diaz v. Massachusetts, where the United States Supreme Court ruled that lab results in these types of cases are inadmissible unless the defendant has the opportunity to cross-examine the analyst who performed the test. However, with drug analysts and some other types of experts (medical examiners, for example), substitute experts are sometimes permitted to testify if they had some involvement in the testing or review process.

Cross-examination of witnesses is arguably a defendant’s most important tool in attacking the Commonwealth’s case. If you are charged with a crime, it is important to consult with an experienced criminal defense attorney who understands the applicability of the confrontation clause to your case.

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