The Right to Confront is not Bulletproof

The United States Constitution gives you the right to confront your accusers in any criminal trial. In most other hearings, you don't directly have that constitutional right, but statutes and the rules of evidence may exclude statements not made by first-hand witnesses. Even in criminal trials, the right to confront will not always bar an accuser's statements. You may have heard someone say, "no face-no case." It's not as simple as that.


Unavailability of the Accuser

First, the State must show that it made a good faith, reasonable effort to get the accuser to trial, but the accuser is unavailable. If you had anything to do with causing that unavailability, however, the court will likely allow statements by that accuser to be presented by another witness.


Whether the Accuser's Statement is "Testimonial"

Second, a key factor is whether the accuser's statements were "testimonial." This is a new rule and the precise contours are still unsettled. In general, "testimonial" means statements made with the expectation they be used for prosecution of a crime. An important exception is statements made to get help, in an emergency situation. Of course sometimes a statement is made both to get help and to assist in prosecution. What to do in that circumstance is still being hammered out. If the statement is testimonial and the accuser available but not presented in court by the State, the right to confront will keep the statement out of trial.


If the Accuser's Statement is "Nontestimonial"

If, however, the statement is nontestimonial, older rules apply, governing the right to confront, so whether the right keeps the statement out of trial gets much more iffy. An attorney must look closely at all the facts, and review the applicable law, before advising you on the likely outcome or forming arguments on your behalf.


There's Still a Chance

Even if the constitutional right to confront does not apply, however, you may still benefit from statutes or rules of evidence that operate to keep the accuser's statements out of trial. For instance, hearsay rules may bar the statements. Again, an attorney must study the issue carefully, it will depend on the facts of your particular case.