What Happens if Evidence is Introduced from a Witness Who Can’t Testify at Trial?

March 27, 2022 Don Pumphrey, Jr. Criminal Defense Social Share

Going to trial for a criminal charge can be an extremely stressful situation. Along with trying to navigate the complex legal world, there are additional rules and requirements that must be upheld in the courtroom. While the process may be intimidating, there are plus sides to trial.

For the prosecution, they have their own set of rules that must be followed – such as rules that must be adhered to when it comes to witnesses testifying at trial. But what are the procedures when a person is unable to testify at trial? This blog will go over whether or not evidence introduced by a witness who cannot testify at trial can be admitted in court.

The “Confrontation Clause”

Under the 6^th Amendment, as part of the Bill of Rights, there is a specific clause referred to as the “Confrontation Clause,” which guarantees criminal defendants the opportunity to confront the prosecution’s witnesses in the case against them and dispute the their testimony. The Confrontation Clause applies to both statements made in court, as well as statements made outside of the courtroom that are used as evidence during trial.

Under the Confrontation Clause, the prosecution may not introduce any out-of-court statement offered for its truth, also known as a hearsay statement, that has been given by a person or witness who is unable to appear in court to testify in person.

The following is a list of statements made out of court that could potentially violate the Confrontation Clause:

• A statement made by a victim during a police interrogation, who is a non-testifying witness.
• A statement made by a victim to an emergency medical responder, hospital staff member, or social worker, who is a non-testifying witness.
• An autopsy report made by a non-testifying medical examiner.

The Right to Cross-Examine

Typically, the defendant is guaranteed the right to question the witnesses who provide testimony during trial. The defendant is able to challenge the witness based on any truth, bias, or credibility regarding their testimony.

Based on the trial court rules, the manner of the cross-examination can be limited or brought to a halt altogether.  In the case that a judge restricts the cross-examination because it is deemed to be too harsh, then it could potentially be a violation of the Confrontation Clause. If this were to happen, the defendant would have the basis to appeal the verdict.

Example Case – How Crawford v. Washington Changed the Confrontation Clause

Up until  Crawford v. Washington in 2004, the Supreme Court claimed that out-of-court statements did not violate the Confrontation Clause. As long as the statements appeared to be reliable, they could still be used in the trial against the defendant. However, the holding in Crawford drastically altered these rules.

In that case, the defendant was being tried for assault and attempted murder. The defendant’s wife made a statement during a police investigation, which the State sought to admit as evidence that the stabbing was not in self-defense as the defendant claimed.

Due to a marital privilege rule in Washington, which bars a spouse from testifying without the other spouse’s consent, the defendant’s wife was unable to testify in court. The defendant then argued that his 6^th Amendment right was violated since he was unable to confront the witnesses against him when his wife’s prerecorded statement was admitted into evidence. The trial court admitted the statement, and the State Supreme Court upheld the conviction. However, the United States Supreme Court reversed, holding that the use of the wife’s statement violated the Confrontation Clause because, “where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is confrontation.”  This ruling in Crawford set the necessary precedent to ensure that if a witness is unavailable to attend trial, the defendant must have a prior opportunity for cross-examination in order for the testimonial evidence to be admitted.

Finding a Defense Attorney in Tallahassee, Florida

Navigating the legal world can be difficult and scary, but you don’t have to do it alone. If you or a loved one have been accused of a crime, it is imperative you seek out a skilled and knowledgeable criminal defense attorney in Florida to ensure your constitutional rights, like the right to confrontation, are upheld.  Don Pumphrey and his legal team at Pumphrey Law Firm have experience representing clients all across the state of Florida for various charges. Trust Don and his team to provide you with the best possible defense for your case. Call (850) 681-7777 or leave an online message today for a free consultation.

Written by Karissa Key

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