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Conceptualising Confrontation | Part 2 | The Contents of the Right

In Conceptualising Confrontation | Part 1 | Introduction I started looking at the right to confrontation and some of the rhetoric surrounding it (it’s worth reading that post in order to get to grips with what I’m saying here). I suggested that although many lawyers think they understand what confrontation entails, in reality the right is something of an enigma. In a separate post on anonymity and super-injunctions I said that a principled understanding of the right to confrontation (with witness anonymity orders on the statute book) was still an important issue because the decision in Al-Khawaja and Tahery v United Kingdom (2009) 49 E.H.R.R. 1, in which it was decided by a chamber of the ECtHR that allowing a witness statement to be admitted as evidence where the witness was not available for cross-examination and that evidence was the sole or decisive basis for convicting the accused violated the right to a fair trial provided in arts 6(1) and 6(3)(d) of the Convention is currently being appealed by the UK government in the Grand Chamber of the ECtHR. A lot depends on the GC’s [eventual] decision, including the width of our domestic anonymity provisions. The GC’s decision is also likely to have a significant bearing on the validity of the Supreme Court’s decision in R v Horncastle [2009] UKSC 14; [2010] 2 A.C. 373 (a judgment amounting to a massive two-fingers up to the ECtHR) in which it was held that the statutory regime under the Criminal Justice Act 2003 relating to the admission of the evidence of an absent witness at a criminal trial did not breach the article 6 of the ECHR and that the jurisprudence of the ECHR did not require the regime to be disapplied in favour of a rule that convictions based solely or decisively on such evidence were incompatible with article 6 (which flies right in the face of the decision in Al-Khawaja).

So, in this (admittedly lengthy) post, I’m going to try to identify the essential ingredients of the right to confrontation. For ease, I’ve set out my conclusions here, but I hope you’ll be able to work your way through the full piece if this subject is of interest to you.

I suggest that the right we know as the ‘right to confrontation’ is composed of four essential ingredients:

(i) Publicity and transparency in the entire adjudicative process

(ii) The accused must have the opportunity to subject witnesses to visual and auditory observation at a time contemporaneous with the reception of the witness’s evidence

(iii) The witness must be subject to adverse-question by or on behalf of the accused

(iv) The real legal identity of the witness must be disclosed to the accused prior to the reception of the witness’s evidence and the accused be permitted to identify the witness visually and auditorily.

THE CONTENTS OF THE RIGHT TO CONFRONTATION

1.  The right to a public trial/the requirement for publicity

The first component of the confrontational model identified by Dennis and Maffei is that of publicity. This component may be said to require that the conduct of criminal proceedings must take place transparently before members of the public and that ‘access to its contents is ensured through press coverage or other means’ (see  S. Maffei, The European Right to Confrontation in Criminal Proceedings (Groningen, 2006), p. 24) Such a requirement has its roots in ancient Roman law, which stipulated that trials take place res publica and was vigorously defended by the sixteenth-century French jurist, Pierre Ayrault, who warned that,

It is easy behind closed doors, to adjust or diminish [the evidence], to effect intrigues or pressures. The audience, by contrast, is the rein on the passions. It is the scourge of bad judges. (see P. Ayrault, Ordre, Formalité et Instruction Judiciare (Paris, 1588), p. 244)

For the most part, English law has been constant in its devotion to the principle of open and public justice. Lord Steyn in Re S (A Child) (Identification: Restrictions on Publication) [2004] 4 All ER 683 (HL) event went so far as saying that ‘a criminal trial is a public event’. A major derogation from the principle of public justice in English law is provided by the Pro Camera Stellata Act 1487 which established the much-loathed prerogative Court of Star Chamber. Amongst a number of inquisitorial-style measures, the procedure of the Star Chamber included the reception of evidence given to the court in private. As Lusty notes, the Court of Star Chamber eventually ‘came to be used as an instrument of oppression by the Crown to strike at its political opponents’ and became ‘synonymous with all that was tyrannical and unjust.’ (see D. Lusty, ‘Anonymous Accusers: An Historical & Comparative Analysis of Secret Witnesses in Criminal Trials’, (2002) Sydney Law Review 361)

Following the abolition of the Star Chamber in 1641, a consensus soon emerged among evidence scholars that publicity was essential in promoting accuracy in the pursuit of truth. The instrumental utility of publicity was probably best encapsulated by Jeremy Bentham in his Rationale of Judicial Evidence where he said:

Environed as he [the witness] sees himself by a thousand eyes, contradiction, should he hazard a false tale, will seem ready to rise up from a thousand mouths; many a known face, and every unknown one, presents to his a possible source of detection… (see p 423 of Bk III of Rationale)

In the present day we find the principle of open justice enshrined in a number of human rights treaties, including the ECHR under article 6(1). However, in practice as Professor Dennis observes, ‘there are several qualifications to this principle of public trial’.

The default setting in English law is that criminal proceedings, in accordance with article 6(1), should be held in public. Exceptions to this general include an inherent power of a court sit in camera in exceptional circumstances (see Yam [2008] EWCA Crim 269 at [6]); impositions of restrictions on reporting (in the case of juveniles (see, Children and Young Persons Act 1933, ss 39 and 49) and complainants of offences listed under s 2 Sexual Offences (Amendment) Act 1992); and, of course, those cases where a declarant’s out-of-court statement is admitted via an exception to the hearsay rule. Moreover, the emergence of special measures, such as the use of screens or live-link evidence, presents additional challenges to the principle of publicity.

For the purposes of the conception of confrontational I am seeking to develop here, my opinion is that, in its purest form, the confrontational model requires that criminal proceedings be conducted in a way fully accessible and reportable to the public, particularly at those stages where evidence is to be received. This is because, in addition to any other purposes publicity may be said to serve, it safeguards the integrity of the trial process, which confers a considerable benefit on the accused and on other parties.

2.  The right to face-to-face confrontation/the presence of the witness before the accused

The second component identified by Dennis and Maffei is that, as a general rule, the accused is entitled to ‘eyeball’ the witnesses against him. In this sense, the confrontational model may be said to require that witnesses give their evidence in the physical presence, and under the gaze of, the accused.

This aspect of the right to confrontation can be traced back to the tenets of ancient Roman criminal procedure, which as Herrmann and Speer explain, ‘consistently demanded that defendants have the opportunity to be present at the proceedings against them.’ (see F. Herrmann and B. Speer, ‘Facing the Accuser: Ancient and Medieval Precursors of the Confrontation Clause’ (1994) 34 Virginia Journal of International Law 481, 485) Perhaps more importantly, Roman law also required that the accuser be present in court to state the charge and produce the evidence. Thus, the defendant had an opportunity for a personal encounter with the accuser in court.

By the sixteenth-century, except within the context of the trials of heretics, the notion of a face-to-face confrontation between accuser and accused had even been imported into the law of continental European jurisdictions. In 1588, the French criminal lawyer Pierre Ayrault observed of French criminal procedure that,

… it is natural and consequently common to all men…that the witnesses charging [the accused] be brought before him, to sustain face-to-face the crime of which they are accusing him, in order that if he has something to say against them, he may say it; and that the witnesses may see and recognise the person about whom they are deposing.

In purely instrumentalist terms, a requirement that the witness and the accused be brought together face-to-face can be justified on two grounds. Firstly, it could be argued that this component enables the accused to test the veracity of the witness within the context (or perhaps, the ordeal) of a physical face-to-face encounter. The rationale behind this argument is encapsulated in the following observation by Zechariah Chafee:

[A witness] may feel quite differently when he has to repeat his story looking at the man whom he will harm greatly by distorting or mistaking the facts. He can now understand what sort of human being that man is. (see, Z. Chafee, The Blessings of Liberty (Philadelphia, 1956), p. 35)

As Justice Scalia put it in Coy v Iowa  487 US 1012 (1988), the force behind Chafee’s argument is that ‘it is always more difficult to tell a lie about a person “to his face” than “behind his back”’. However, the validity of this attractively simple position only goes so far. Professor Spencer rightly points out that whilst it is often more difficult to lie about a person in their presence,

… it is also harder to tell the truth, particularly if it is unpleasant; and the physical presence of the person spoken of, though it may make it uncomfortable for the speaker, does not make it any more likely that his words are true. (see, J. Spencer, Hearsay Evidence in Criminal Proceedings (Oxford, 2008), p. 40)

Moreover, the contemporary reality is that seldom does the accused himself actually conduct the examination of witnesses. In some cases, English law expressly prohibits the accused from doing so.33 In addition, recent years have seen the emergence of a number of measures specifically designed to cut back on the ability of the accused to physically confront adverse witnesses. Examples include the relaxation of the rules governing the admissibility of hearsay evidence and rules permitting pre-recorded video interviews to stand as a ‘vulnerable’ witness’s evidence-in-chief.34 In addition, the Youth Justice and Criminal Evidence Act 1999 (YJCEA) provides for the prevention of certain classes of witness from being seen by the accused via the use of a screen (s 23); evidence being given via a live-link (s 24); and pre-recorded cross-examinations and re-examinations (s 28).

In relation to this component of the confrontational model, the position in English criminal procedure stands in stark contrast with that in the United States where the ‘Confrontation Clause’ contained in the Sixth Amendment has given legislators and judges alike significantly less room to manoeuvre. The majority in Coy v Iowa held that face-to-face confrontation was the central element of the Confrontation Clause and grandly stated that “there is something deep in human nature that regards face-to- face confrontation between accused and accuser as ‘essential to a fair trial in a criminal prosecution.’” In the recent case of Crawford v Washington (2004) 124 S Ct 1354 a panel of nine Supreme Court justices concurred in holding that the playing of out-of-court testimony violated, on an originalist interpretation, the guarantee of confrontation afforded by the Sixth Amendment Confrontation Clause.

Maffei provides the second instrumentalist argument in favour of a requirement that the witness be brought face-to-face with the accused. According to him, face-to-face confrontation

… is an essential component of the confrontational paradigm, since it alone gives the opportunity of physically identifying the witness. This may be crucial whenever the defendant is unable to recognise who the accuser really is (and, for instance, whether any prior contacts between the two may have occurred), despite the disclosure of his legal identity.

Here, Maffei appears to be concerned with situations where the accused is in some way obstructed from visually observing the witness. As has been indicated above, such an obstruction may arise in English law where the witness gives evidence from behind a screen or where an out-of-court statement is admitted via an exception to the rule against hearsay. In such circumstances the argument that the accused is deprived of the opportunity to visually identify the witness with a view to discovering factors that may cast doubt on the witness’s reliability and/or credibility possesses considerable force. However, can it be said that Maffei’s concern continues to apply when the witness gives evidence via a live-link or some pre-recorded medium? Even assuming that the physical presence of the witness in the courtroom provides the optimal conditions for visual and auditory observation, it is difficult to conceive of circumstances where, from an instrumentalist perspective, live-link evidence is any less useful to the defence. Regrettably, Maffei does not address this.

As with the first instrumental justification for a requirement that the witness testify in the presence of the accused, Maffei’s ‘identification’-based justification has its limitations. However, for the purposes of the conception of confrontation I am seeking to develop in this blog post, we may conclude that the confrontational model requires, at the very least, that the accused be afforded the opportunity to personally subject adverse witnesses to visual and auditory observation at a time contemporaneous with the delivery of their testimony in order to afford the accused an opportunity to discover the existence of any factors capable of undermining the witness’s reliability and/or credibility not otherwise discernible from the witness’s real legal identity. This therefore renders the deployment of any device which has the effect of obstructing the accused’s visual or auditory perception of a witness incompatible with my analysis of this component of the confrontational model.

3.  The presence of the witness before the trier of fact

As I said above, Maffei, unlike Dennis, draws a distinction between a face-to-face confrontation between the witness and the accused and the situation where the testifying witness gives evidence under the gaze of the trier of fact. In this respect the confrontational model may be said to require that witnesses deliver their testimony orally, in full view and in earshot of the jury in order for them to be able to observe ‘every visible or audible form of self-expression manifested by [the] witness’ (see, M. Stone, ‘Instant Lie Detection? Demeanour and Credibility in Criminal Trials [1991] Crim LR 822). Here, Maffei cites ‘the assumption that the observation of the body language of the [witness] – the so-called demeanour evidence – would provide a reliable indication of his trustworthiness.’ As a matter of common-sense, demeanour undoubtedly influences the course and conduct of a wide range of social interactions outside of the courtroom.

As Jerome Frank stated:

All of us know that, in every day life, the way a man behaves when he tells a story – his intonations, his fidgetings or composure, his yawns, the use of his eyes, his air of candor or evasiveness – may furnish valuable clues to his reliability. Such clues are by no means impeccable guides but they are often immensely helpful. (see, J. Frank, Courts on Trial. Myth and Reality in American Justice (Princeton, 1950), p. 21)

Marcus Stone more cautiously observes,

[i]n appropriate contexts, displays of feelings may, indeed, give some guidance about the truthfulness or falsity of the message. Signs of anxiety, guilt, agitation, embarrassment or other emotions, may suggest that a speaker is or is not genuine.

However, the utility of demeanour in assessing the credibility of witnesses called to give evidence in criminal trials is a vexed issue. Stone rightly draws attention to a number of realities inherent in the course of the trial process which may reduce the value of verbal and non-verbal cues in assessing witness veracity. For example, Stone notes that the trier of fact will not be familiar with the witness’s out-of-court demeanour and so will not be able compare it to their observations in court. Moreover, in examination-in-chief and cross-examination advocates rarely afford witnesses full latitude of expression, and ‘in such circumstances witness are in effect sterilised.’ Moreover, in recent years a school of thought has emerged that holds that ‘the capacity of ordinary people [such as those serving on a jury] to detect unreliability by observing demeanour is simply a myth.’ (see, A. Choo, Hearsay and Confrontation in Criminal Trials (Oxford, 1996), p. 31)

In his 1991 analysis of the then available research on the utility of demeanour in lie-detection, Olin Wellborn concluded:

To the extent that people can detect lying or erroneous beliefs in another, they do so primarily by paying close attention to the content of what the other says, not by observing facial expression, posture, tone of voice, or other nonverbal behaviour. (see, O. Wellborn, ‘Demeanour’ (1991) 76 Cornell Law Review 1075, 1104)

In view of this finding, Wellborn made the radical recommendation that American legal procedure would be improved, by abandoning live trial testimony in favor of presentation of deposition transcripts [since] transcripts are probably superior to live testimony as a basis for credibility judgments because they eliminate distracting, misleading, and unreliable nonverbal data. Nevertheless, a number of evidence scholars, notwithstanding the lack of scientific support, maintain that jurors should not be deprived of the opportunity to assess the demeanour of witnesses. For example, Christopher Mueller has argued that ‘the objection that juries can perform well without the benefit of demeanour evidence and cross-examination is itself suspect’ (see, C. Mueller, ‘Post-modern Hearsay Reform: The Importance of Complexity’ (1992) 76 Minnesota Law Review 376, 383) firstly, because people prefer to receive first-hand information when deciding serious matters, and secondly, because ‘few everyday decisions bear any resemblance to the decisions fact-finders make in lawsuits.’ In a similar vein, Jack Winstein stated in 1940 that notwithstanding the fact that the theory that jurors can assess reliability by observing demeanour ‘is not subject to proof by acceptable psychological tests and theory, it is shared by jurors and it seems to accord with our common experience.’ (see, J. Winstein, ‘Probative Force of Hearsay’ (1960) 46 Iowa Law Review 331, 335) Winstein and Mueller therefore seem to place considerable emphasis on the notion that permitting jurors to observe demeanour is an essential component of the right to confrontation merely because such a facility conforms with our ‘common experience’ of criminal litigation and the process of fact-finding generally. With respect, this is an extremely weak basis upon which to include a requirement that the witness give evidence under the gaze of the jury.

If, as the empirical evidence seems to suggest, demeanour is of dubious utility in assessing reliability, a question therefore arises as to why should a requirement that the witness testify in the presence of the fact-finder be included in the confrontational model? Maffei deals with this question by noting that the role of the fact-finder is not restricted to making assessments of veracity, and that ‘judges and jurors attend court hearings to listen to the witness’s accounts and, in all jurisdictions, they are entitled to ask for clarifications and pose their own questions, during or after the parties’ examinations.’48 For this reason, Maffei contends that their presence at the time the witness gives evidence is an essential component of the confrontational paradigm. The problem here is that unlike the other interests discussed in this section, it is difficult to identify (at least, from an instrumentalist point-of-view) the precise benefit, if any, that this would provide the accused, in whom, after all, the right to confrontation inheres. In the absence of support for ‘demeanour evidence’, it is suggested that a requirement that the fact-finder be present is better viewed as a consequence of the presence of the accused, since it would be inconceivable and illogical for a witness to give evidence in the presence of the accused but not in the presence of the jury.

4. The right to cross-examination/contemporaneous adverse-questioning

Out of the six components of the confrontational model discussed in this blog post, the requirement that witnesses be subjected to adverse questioning has attracted the most supporting (or, perhaps, exaggerated) rhetoric. In an oft-cited passage, Wigmore described cross-examination as ‘beyond any doubt the greatest legal engine ever invented for the discovery of truth’. (see, J. Wigmore, Evidence in Trials at Common Law (J. Chadbourn rev) (Boston, 1974) at §1367) In this sense, the core value of an adverse-questioning component is instrumental – its primary aim is to enhance the factual accuracy of the evidence received by the tribunal by exposing faults in the witness’s perception of events; errors in their memory; insincerity; and ambiguities in the narrative of their testimony. The traditional rule excluding hearsay evidence rested on an abiding faith in the perceived instrumental value of cross-examination as demonstrated by Lord Normand’s view in R v Teper [1952] AC 480 (HL) that hearsay evidence ‘is not the best evidence…The truthfulness and accuracy of the person whose words are spoken to by another witness cannot be tested in cross-examination.’ As Maffei observes, ‘of all the components, this is certainly the most difficult to define.’In this first instance, a distinction needs to be drawn between ‘cross-examination’ on the one hand and ‘adverse-questioning’ on the other. In the case of the former, the challenge to the witness’s testimony is conducted by the opposing party. This is the method of challenge adopted within the adversarial context of Anglophone legal systems. In contrast, ‘adverse-questioning’ contemplates situations where the challenge to the witness’s testimony is conducted by the court instead of, or in addition to, that conducted by the opposing party. Typically, this arrangement is observable in the procedures of continent legal systems. This distinction is expressly recognised by article 6(3)(d) of the ECHR which provides that an accused has a minimum right ‘to examine or have examined witnesses against him’.

Colin Tapper states that the object of cross-examination is two-fold:

…first, to elicit information concerning the facts in issue or relevant to the issue that is favourable to the party on whose behalf the cross-examination is conducted; second, to cast doubt upon the accuracy of the evidence in chief given against such a party. (see, C. Tapper, Cross & Tapper on Evidence, 11th edn (Oxford, 2007), p. 336)

To this list we may also add a third object, namely that cross-examination provides the accused with an opportunity to ‘put’ his or her case directly to the witness, and as a consequence, to the tribunal of fact. Arguably, adverse-questioning (as distinct from the cross-examination) at least encompasses the two objects identified by Tapper but may be said to include a third object, namely party-neutral fact-gathering. From the point of view of the accused, the utility of cross-examination (in the adversarial sense of the term) is well summarised by Professor Dennis:

It may bring out material favourable to the defendant which has been previously suppressed. It may expose lies and mistakes in the adverse testimony. It may discredit the witness completely or in an important respect. In these various ways it may destroy or damage the probative value of the witness’s evidence and accordingly it may help to avoid a miscarriage of justice in the form of wrongful conviction.

Whilst cross-examination is generally regarded as fundamental, there are those who doubt its utilitarian value. Diane Birch offers an especially sceptical view, stating that a skilfully conducted cross-examination merely serves ‘to make an honest witness appear at best confused and at worst a liar’. (see, D. Birch, ‘The Criminal Justice Act 1988—The Evidence Provisions’ [1989] Crim LR 15, 17) Furthermore, Ted Finman questions the effectiveness of cross-examination in exposing lies, stating that ‘cross-examination is unlikely to expose deliberate falsification.’ (see, T. Finman, ‘Implied Assertions as Hearsay: Some Criticisms of the Uniform Rules of Evidence’ (1962) 14 Stanford Law Review 682, 690) Nevertheless, Choo, arguably another sceptic as to the utility of cross-examination, concedes that,

[t]here may, of course, be situations where… a witness’s testimony will be successfully broken ‘broken down’ in cross-examination, and the witness will admit to lying.

Whatever is said about cross-examination’s efficacy in exposing untruthful testimony, Lawrence Tribe suggests that ‘the role of cross-examination with respect to ambiguity [in narrative] is particularly important’. (see, L. Tribe, ‘Triangulating Hearsay’ (1974) 87 Harvard Law Review 957, 969, note 42)

The process of cross-examination is firmly engrained in English criminal procedure. However, as with the other components of the confrontational model, the right to cross-examination is subject to a number of limitations and provisos. Ian Dennis identifies four broad situations in which incursions may be made into the accused’s right to subject witnesses to adverse-questioning. Firstly, the accused may be barred from personally conducting cross-examination. Secondly, restrictions may be placed on the content of the cross-examination, whether or not it’s conduct by the accused or his or her counsel. Provisions to this effect can be found in sections 41-43 of the YJCEA 1999 and in s 86(2)(c) of the Coroners and Justice Act 2009, which is considered in more detail below. Thirdly, the accused may forfeit the right if either or his counsel pursues an irrelevant, improper or oppressive line of questioning. Finally, where an out-of-court statement is admitted under the CJA 2003.

For the purposes of a pure confrontational model,  the right to cross-examination is a crucial component. Without it, the accused’s ability to test unfavourable testimony, to elicit favourable testimony and to put his or her version of events before the court is severely diminished. In the adversarial context, any form of adverse-questioning will satisfy the confrontational model if it possesses the following four qualities. Firstly, the adverse-questioning must be conducted orally. Secondly, the questioner must be permitted, within accepted professional standards, to ‘challenge’ the witness. Thirdly, the adverse-questioning must take place at a time contemporaneous with the reception of the evidence in chief. Fourthly, though it is not necessary for the questioner to be the accused in person, the questioner must nevertheless be permitted to receive instructions from the accused during the conduct of the cross-examination itself.

5. The right to know the identity of the witness

The accused’s right to know the identity of his accusers is the single component of the confrontational model which has received the least attention from evidence commentators. This is arguably due to the fact that until relatively recently, such a right has always been taken for granted. Nevertheless, both Dennis and Maffei are agreed that disclosure of a witness’s identity is a crucial element to the right of confrontation.

Disclosure of a witness’s identity enables the defence to conduct an out-of-court investigation of the witness which may include anything from inquiries into their prior criminal conduct to their physical and mental health or their relationships with others. Such out-of-court investigations will be essential to the defence’s in-court investigation of the witness (through cross-examination), especially where the witness’s credibility is in issue. From this point of view, the core value of this component is instrumental insofar as it enables the defence to test, by reference to the witness’s background, the reliability of their evidence.

Whilst this component will be placed under considerable scrutiny in the remainder of this post, suffice it to say at this stage that this element of the confrontational model is satisfied where (a) the witness’s real legal identity (including known changes of names, pseudonyms and false identities) is disclosed and (b) the accused is permitted to subject the witness to visual and auditory observation in order, so to speak, to put a face to the witness’s name.

6. The duty of the witness to tell the truth

Finally, Maffei argues that the confrontational paradigm includes a requirement that witnesses be placed under an ‘obligation of sincerity’, and advances the argument that whilst ‘every testimonial statement might be a lie, only certain lies are punishable as criminal offences under the law.’ For Maffei, this component is satisfied ‘whenever the concerned statements were given a subject under the threat of a criminal sanction for perjury or false testimony.’ The main gist of Maffei’s analysis appears to centre itself on the presumption that ‘the taking of the oath is a powerful disincentive to perjury’.

In English criminal proceedings, the general position is that witnesses are required to give ‘sworn’ evidence in a manner and form governed by s 1(1) of the Oaths Act 1978. Section 1(1) of the Perjury Act 1911 provides that where a person lawfully sworn as a witness ‘wilfully makes a statement material in that proceeding, which he knows to be false or does not believe to be true, he shall be guilty of perjury.’ To this extent, English criminal procedure closely tracks Maffei’s chain of reasoning.

An alternative justification for this component is that the swearing of an oath reinforces upon the witness their responsibility to tell the truth. As the leading American evidence practitioner work, McCormick on Evidence, puts it, the oath may be seen as ‘a ceremonial and religious symbol [which] may induce in the witness a feeling of special obligation to speak the truth.’ (see, E. Cleary (ed.), McCormick on Evidence (3rd edn, Minnesota, 1984), p. 727) One proponent of this view is Professor Michael Seigel, who argues that the process of swearing an oath functions ‘prophylactically to raise the odds that information received by the jury is accurate.’ (see, M. Seigel, ‘Rationalising Hearsay: A Proposal for a Best Evidence Rule’ (1992) 72 Boston University Law Review 893, 906) Seigel explains that this prophylaxis ‘is the result of witnesses’ self-regulation in response to the taking of an oath subject to the penalty of perjury and in anticipation of cross-examination.’ In this sense, the very process of swearing an oath may be said to act as a ‘courtroom safeguard’ against the admission of unreliable testimony. Whilst acknowledging that ‘no system can guarantee accuracy’, Seigel observes that,

… courtroom safeguards appear to serve a significant purpose. The courtroom is one of the few places where an oath must be taken before one can speak; this drives home the gravity of the occasion for at least some witnesses.

Unsurprisingly, Seigel’s view of the instrumental function of the oath has its cynics. For example, in 1948 Edmund Morgan stated:

No doubt the oath originally furnished a powerful stimulus to compliance with its terms. Unquestioning belief in the inevitability of the punishment which would follow its violation was well-nigh universal… but fear of punishment by supernatural forces for violation of an oath is generally regarded as non-existent; and the threat of prosecution for perjury has little effect. (see, E. Morgan, ‘Hearsay Dangers and the Application of the Hearsay Concept’ (1948) 62 Harvard Law Review 177, 185-186)

Moreover, as Andrew Choo recognised in his work on hearsay and confrontation in criminal trials, studies merely suggest that the swearing of an oath may at least make the witness less inclined to tell lies during their testimony but is by no means an absolute guarantor of reliability. Even assuming that the swearing of an oath or affirmation doesn’t adversely affect the accuracy of witness’s evidence, there remains some difficulty in explaining why such a requirement should be included within our conception of the right to confrontation. On this issue, Maffei does not help us. The main reason for this is that any benefit derived from an obligation on witnesses doesn’t necessarily result back to the accused. To make the same point a different way, we may assume that most witnesses offered by a prosecuting authority will have been called by virtue of the fact that their evidence will either advance the prosecution’s case or undermine that of the defence. In both circumstances, the accused would understandably prefer the witness not to give evidence at all! If such a witness comes up to proof under an obligation of sincerity, they are in effect only going to be damaging the accused’s prospects of acquittal. Put simply, from the accused’s point of view nothing advantageous is likely to come from the mouth of an adverse witness, whether or not their evidence is sworn.

Where the obligation of sincerity is concerned, the better view is that it is a duty owed by the witness to the court and the administration of justice generally, rather than the accused. Such a view draws support from the fact that the offence of perjury, which is committed when a false statement is made under oath in criminal proceedings, may be classed as an offence against the administration of justice, much like the common law offence of perverting the course of justice or the offence of contempt of court. Unlike the other components of the confrontational model, this element does not afford the accused himself any discernible benefit not provided by the cross-examination component. For this reason, since the right to confrontation inheres only in the accused, I suggest that any obligation of sincerity falls beyond the boundaries of the confrontational model.

So, based on this length survey (congratulations if you’ve made it this far), I think the right of confrontation consists of the following four components:

(i) Publicity and transparency in the entire adjudicative process

(ii) The accused must have the opportunity to subject witnesses to visual and auditory observation at a time contemporaneous with the reception of the witness’s evidence

(iii) The witness must be subject to adverse-question by or on behalf of the accused

(iv) The real legal identity of the witness must be disclosed to the accused prior to the reception of the witness’s evidence and the accused be permitted to identify the witness visually and auditorily.

In Part 3, which I’ll post sometime next week, I’m going to look at how these four components fit together.

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Filed under: Confrontation, Criminal law, Evidence, Longer pieces, Witness Anonymity

About the Author

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I am a law reporter employed by the Incorporated Council of Law Reporting for England & Wales. I write law reports for the Official Law Reports, the Weekly Law Reports and the Public and Third Sector Reports. I also write on a freelance basis for the Road Traffic Reports and the Times Reports.

2 Comments

  1. Pingback: Conceptualising Confrontation | Part 3 | The Relationship Between the Four Components of the Conceptual Model « Carrefax

  2. Pingback: Conceptualising Confrontation | Part 4 | Rationalising the Right to Confrontation « Carrefax

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