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Conceptualising Confrontation | Part 4 | Rationalising the Right to Confrontation

In Conceptualising Confrontation | Part 2 | The Contents of the Right I set out to isolate and pin-down the essential ingredients of the right of confrontation. In that post, I suggested that there were 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.

In Conceptualising Confrontation | Part 3 | The Relationship Between the Four Components of the Conceptual Model I examined the relationship between those four essential ingredients and explored whether ‘confrontation’ was a combination of the four ingredients listed above (so as to form a single, unitary right), or whether the four ingredients were in fact individual separate rights bearing ‘confrontational’ qualities. I concluded that there was an observable interdependency between the four ingredients listed above where publicity, for example, could not be achieved unless the remaining three ingredients were present. Based on that interdependency, I suggested that the four ingredients do in fact combine and interlock to form a single right of confrontation. I then suggested that the four ingredients could be arranaged into a hierarchy of importance based on whether the existence of one of the ingredients of the right was dependant upon the existence of one or more the other three. To cut a long story short, I suggested that the disclosure of the real legal identity of witnesses was the most the important of the four ingredients because the satisfaction of that element could not be achieved by the existence of the any of the remaining three.

So, having advanced my own conceptualisation of the confrontational model (ie, that it is a single right composed of four essential ingredients), I now turn to consider the underpinning rationales of the right, of which I have suggest there are three: (i) instrumentality in accurate fact-finding; (ii) the advancement of a wider social interest in the administration of justice; and (iii) the preservation of the dignity of the accused.

(i) The Instruamental Dimension

The foregoing analysis within this series of posts has primarily been concerned with the instrumental goals achieved by confrontation. It has been shown that each of the four components of the model serve, to a greater or lesser extent, to enhance the factual accuracy of the adjudicative process by furnishing the accused with the means to test adverse testimony. The primary rationale for the right is that it advances the intrinsic concern of promoting ‘rectitude of decision’ (J. Bentham, J. Bentham, Rationale of Judicial Evidence (London, 1827), bk III, p. 1). The importance of the attainment of ‘the right answer’ is self-evident in a system of law which recognises, as Ronald Dworkin famously expressed it, that ‘people have a profound right not to be convicted of crimes of which they are innocent.’ (R. Dworkin, A Matter of Principle (Oxford, 1986), p. 72).

However, the right of confrontation can be seen to possess two additional theoretical dimensions, both of which pertain to relational or extrinsic policy concerns. Firstly, the right to confrontation is underpinned by a wider societal dimension. Secondly, the right can be rationalised in terms of the promotion of the accused’s dignity and autonomy within the trial process.

(ii) The Societal Dimension

In a 1991 paper on hearsay reform, Professor Eileen Scallen argued that in addition to the basic instrumental dimension of the right to confrontation, the right can also be theorised in terms of a communal theory of criminal dispute resolution (E. Scallen, ‘Constitutional Dimension of Hearsay Reform: Towards a Three-Dimensional Confrontational Clause’ (1991) 76 Minnesota Law Review 623, see generally at 638). This rationalisation focuses on the ‘relationship between the accused and the formal accusers, in the form of the prosecution and the power of the state.’ The central gist of this theory is that the right to confrontation functions to restrain ‘the capricious use of governmental power’ by depriving prosecuting authorities of the procedural wherewithal to base prosecutions on false or otherwise unfairly obtained evidence. (M. Berger, ‘The Deconstitutionalization of the Confrontation Clause: A Proposal for a Prosecutorial Restraint Model’ (1992) 76 Minnesota Law Review 557, 560)

Scallen’s view of the theoretical underpinning of the right to confrontation is, to an extent, echoed in the second limb of Professor Dennis’ ‘legitimacy of the verdict’ formulation, which holds that for a verdict in a criminal trial to be legitimate it must, inter alia, have moral authority. (I. Dennis, ‘The right to confront witnesses: meanings, myths and human rights’ [2010] Crim LR 255, 257). Put another way, the verdict will lack legitimacy if the means by which it was reached exposes the prosecuting authority and/or the state to censure (an extreme example would be the use of torture to force an accused to confess to a crime, a practice routinely adopted in the Court of Star Chamber and throughout the Spanish Inquisition). Applying this logic to the right of confrontation, it could be argued that the right acts as a check on the state’s conduct in criminal trials and, for this reason, where the right is denied, any verdict adverse to the accused will lack, on a societal view, moral authority. In Coy v Iowa, Scalia J endorsed such a view of confrontation, stating that the right ‘contributes to the establishment of a system of criminal justice in which the perception as well as the reality of fairness prevails.’ (487 US 1012, 1118-9 (1988))

(iii) The Dignity Dimension

A third theoretical dimension to the right is advanced by Toni Massaro, who argues that confrontation promotes a non-functional interest: ‘to preserve the dignity of the criminal defendant.’ (T. Massaro, ‘The Dignity Value of Face-to-Face Confrontations’ (1988) 40 Florida Law Review 863, 866). Massaro reasons that the criminal trial should,

… not only… promote rationality through unbiased and accurate decision making, but also should show respect for persons by allowing equal, active participation in decisions affecting their interest. Confrontation is a specific type of procedure that helps to promote both ends.

Massaro’s proposition gathers force when one views the adjudicative process as a communicative interaction between, inter alia, the state and the accused. As Antony Duff observes:

Any citizen…should have the right to be heard in a process whose outcome might have such a significantly deleterious impact on her: that if we are to treat citizens as ‘persons’ rather than as ‘things’, then those ‘against whom government decisions operate [must be given] the chance to participate in the processes by which those decisions are made, an opportunity to express their dignity as persons. (A. Duff, L. Farmer, S. Marshall and V. Tadros, The Trial on Trial: Volume 3 (Oxford, 2007), p. 100 citing L. Tribe, American Constitutional Law (New York, 1978), p. 502-3)

When seen in this way, the right to confrontation can be said to be the principal means by which the accused’s participation in the trial process is mobilised. The accused’s dignity is preserved because her role, on this account, is equalised with that of the state. To quote from Duff again,

… if we think it important that…the accused should have to answer in person… it must also be important that other members of the polity with a role in the trial—as witnesses, as judges or as jurors—should face him in person. There would be a clear contradiction in calling on you to answer in person to us, but refusing to face you ourselves. (see p. 118)

So, to round this part up, I advance three bases upon which the right of confrontation can be rationalised. First, to ensure the accuracy of the fact-finding process. Second, as a societal check against abuses of state power through the courts. Third, to preserve the dignity of the accused.

Having set out my conceptual stall of what the right of confrontation entails and the bases upon which such a right might be rationalised, Part 5 will start digging into the use of anonymous witness evidence. The theme I’m going to try to develop in the next couple of posts is that the reception of anonymous witness evidence represents a severe (and unwarranted) incursion on the right to confrontation.

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.

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