In cases involving criminal procedure, we can often lose the forest of principle for the trees of legal technicality.
Courts have fashioned intricate (at times conflicting) rules regarding admission of evidence, witness testimony, and other procedural doctrines related to conducting trials. Yet, when done right, these procedures do much to realize the bigger principles we hold dear. We want justice done when crimes occur. We want the innocent protected and the guilty punished. In countries under despotism, we see these lofty goals asserted in theory and crushed in procedural practice.
The Sixth Amendment helps give procedural practice to our lofty principles.
It does so in a series of protections for criminal defendants when under prosecution. Among them, in addition to the right to a “speedy and public trial” and “an impartial jury,” is the defendant’s right “to be confronted with the witnesses against him.” This “confrontation clause” came before the U.S. Supreme Court in last Thursday’s decision resulting from Hemphill v. New York.Â
The Hemphill case concerned prosecutions for the death of a 2-year-old child in the Bronx, a victim of a stray bullet from a 9 mm pistol in a nearby altercation. New York first charged Nicholas Morris for the murder, who took a plea deal for a lesser charge. In so pleading, Morris was asked to plead to possessing a .357 magnum revolver, not a 9 mm pistol. Later, the state also charged Darrell Hemphill for the same death. At his trial, Hemphill blamed Morris for the murder, presenting testimony that 9 mm ammunition had been obtained from Morris’s bedside. Morris was out of the country at the time and could not testify. The court, however, allowed New York to introduce transcript portions of Morris’s plea allocution to rebut Hemphill’s evidence. Hemphill then objected that this evidence constituted witness testimony he could not confront, thus violating his Sixth Amendment right.
The Supreme Court sided 8-1 with Hemphill’s objection. In so doing, the majority rightly pointed to the reasons we need the confrontation clause in particular and our judicial system in general.
The confrontation clause forms a subset of why we need the judicial power at all. We need courts because the written law only says how the government should react to actions that take place, to crimes actually committed. The legislative power possesses no inherent mechanism to determine that point — a point on which its authority over persons and events depends.
The judicial power exists to determine what happened by or to whom and how the law then applies to those persons and events. By establishing guilt or innocence, it makes sure the law truly rules in our day-to-day lives, not just in abstract wishes written on paper.
With the confrontation clause, our founders recognized that disputes would arise over whether a crime was committed. Testimony and other evidence presented in a trial might be an outright lie. Or, the same might be partial and thus misleading. The right to confront witnesses, the court wrote, “requires that the reliability and veracity of the evidence against a criminal defendant be tested by cross-examination.” It presents a concrete means to best arrive at the truth by subjecting evidence to critique and rebuttal. It thereby helps the law to rule as it intended, punishing the guilty and vindicating the innocent.
We must preserve these foundations of justice. Today, the desperation engendered by our intense partisanship gives greater temptation to scuttle means seen in the moment as obstructive in favor of grand goals of political victory. We think of procedures as ways to placate evil and undermine our own side. Yet we do so at our peril.
The highest court gave a small lesson on Thursday in holding the line for what is right. In our broader political discourse, we would do well to listen.
Adam Carrington is an associate professor of politics at Hillsdale College.
