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Photo Of Kyle B. Sawyer

Charged With A Crime? It Doesn’t Mean You’re Guilty.

Evidence: Your Colorado Confrontation Clause Right

On Behalf of | Mar 22, 2014 | Evidence |

The Confrontation Clause can be found in the U.S. Constitution’s Sixth Amendment, and provides: “In all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.” The gist of this right is that the government can’t convict you based on evidence of what people say, who are not present at your trial subject to cross examination in Denver and Jefferson County. The principle further provides that justice is best served when witnesses against you are present in front of the jury, to have their entire self, subject to the jury’s scrutiny. Nonverbal cues such as facial expressions, voice tone, dress, and eye contact are useful in assessing the credibility of a witness. Additionally, cross examination puts the testimony to scrutiny.

Crawford’s Knock Out Blow to Hearsay Evidence

The U.S. Supreme Court firmly defined constitutional parameters of the Confrontation Clause in 2004, in a case called Crawford v. Washington. In that case, a man was convicted of assault based on stabbing another man. While the defendant, Mr. Crawford, claimed self-defense, the prosecution offered a recorded  statement into evidence by his wife which opposed Mr. Crawford. His wife did not testify based on a state law of marital privilege, which, like in Colorado, prevented the spouse from testifying without the other spouse’s consent. In this landmark case, the Supreme Court unanimously held that testimonial hearsay was not permitted unless the witness was unavailable and the defendant had a prior chance to cross examine the witness. Justice Scalia likened the case to British treason trials, which led to the inclusion of the 6th Amendment in the Bill of Rights.

The Government’s Other Abuses of Fairness at Trial

In the real world, we see the prosecution wanting to bring in hearsay testimony evidence of adults and children, at trial. The government is not concern with the unfairness of testimony which cannot be cross examined. In many other instances, the District Attorney lobby has set aside notions of fairness and made it easier to bring in past history of a defendant at a current trial, even if the prior history is years old and substantially dissimilar. Most notably, we see this in sexual assault cases in Arapahoe, Douglas and Adams County, where the legislature has encouraged the introduction of prior sexual conduct of a defendant, to prove that the defendant committed the current offense. Technically, it cannot be admitted to prove propensity, but everyone involved, including the judges, know that is what prosecutors and the legislature had in mind. It is foolish to think that a jury will only use the evidence for “permitted” purposes such as motive, intent, or a common plan or scheme.

Our criminal defense lawyers challenge witness testimony based on the Confrontation Clause and many other impermissible purposes. When charged with a Sexual Assault, Theft or Robbery charge, you need a full-time criminal defense attorney at your side. Don’t trust your life to a personal injury lawyer trying his hand at criminal law. Call our experienced lawyers at 303-731-0719 today. Together, we can protect your future.

Image courtesy of Stuart Miles /