Right to Confront Witnesses

From Criminal Defense Wiki
Jump to: navigation, search

Background

In an adversarial system, the right to confrontation is related to the defendant's right to cross-examination but may, in fact, be even broader. In certain instances it may prevent the prosecution from using evidence, such as sworn testimony, obtained in violation of the defendant's right to confront the witness.

International Sources

International Covenant on Civil and Political Rights

Article 14 (3) -

"In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing; (c) To be tried without undue delay;(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;(e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;(f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court;(g) Not to be compelled to testify against himself or to confess guilt."


This right is an essential element of the principle of equality of arms. The terms 'to examine, or have examined' should be seen as a recognition of the two main systems of criminal justice, i.e the inquisitorial and accusatorial system. It must be noted, that according to this Article, the defense does not have an unlimited right to obtain the compulsory attendance of witnesses for the defendant, but only 'under the same conditions' as witnesses against the defendant. This restriction applies only to the defense, not the prosecution.

Furthermore, Article 14(3)(e) has been interpreted as meaning that the prosecution must inform the defense as to the witnesses they are planning to call at trial within a reasonable time before the trial, in order for the defense to have time to prepare their defense.

To prevent a violation of a defendant's right to examine and have examined witnesses against him, courts should scrutinize claims of possible reprisals and only allow the removal of defendants from the courtroom in truly exceptional and valid occasions. In no case may a witness be examined in the absence of both the defense counsel and defendant. in addition, the use of the testimony of anonymous witnesses at trial is considered impermissible, as it is seen as a violation of the defendant's right under Article 14(3)(e).

Regional Instruments

American Convention on Human Rights

Article 8 (2) (f)-

Every person accused of a criminal offense has the right to be presumed innocent so long as his guilt has not been proven according to law. During the proceedings, every person is entitled, with full equality, to the following minimum guarantees...(f) the right of the defense to examine witnesses present in the court and to obtain the appearance, as witnesses, of experts or other persons who may throw light on the facts;

European Convention on Human Rights

Article 6 (3) (d)-

Everyone charged with a criminal offence has the following minimum rights:...(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

Examples of the Right to Confront Witnesses

Kenya

The right to confront witnesses is a fundamental right essential to a fair trial. It is provided under Article 50(1)(k) of the Constitution, which confers upon an arrested person the right to adduce and challenge evidence. Essentially, evidence will be admitted if given by a witness who is present in court and the defendant gets the opportunity to cross-examine him/her. Thus, hearsay evidence is excluded unless it falls under any of the exceptions recognized under law.

The right to confront witness also incorporates the right sufficient discovery of the persons who the prosecution intends to call as witnesses to enable the defense to prepare to challenge such witnesses in court.

  • 77(2) Every person who is charged with a criminal offence (e) shall be afforded facilities to examine in person or by his legal representative the witnesses called by the prosecution before the court and to obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court on the same conditions as those applying to witnesses called by the prosecution.

Tanzania

Criminal Procedure Act (1985)

  • 295 (2) The accused shall not be entitled as of right to have any witness summoned other than the witnesses whose names and address were given by him to the magistrate at the committal proceedings, but any subordinate court may, after committal for trial and before the trial begins, and the court of trial may, either before or during the trial, issue a summons for the attendance of any person as a witness for the defence if the court is satisfied that the evidence is in any way material to the case.

Uganda

Constitution

  • 28(3) Every person who is charged with a criminal offence shall (g) be afforded facilities to examine witnesses and to obtain the attendance of other witnesses before the court.



See Rights of the Accused