Right to Confront Witnesses

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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, Section 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).