U.S. v. Bridges, 55 M.J. 60

Core Criminal Law Subjects: Witnesses: Confrontation

1. the right to confrontation and cross-examination means that the prosecution must present the hearsay declarant at trial in an attempt to elicit the out-of-court statement directly from the witness’s lips while on the witness stand and under oath
2. there is a preference for face-to-face confrontation at trial, and hearsay is admissible if the witness is unavailable and the hearsay either falls within a firmly rooted hearsay exception or has particularized guarantees of trustworthiness
3. the Sixth Amendment right to confront and cross-examine a witness establishes a rule of necessity; usually, the prosecution must either produce, or demonstrate the unavailability of the declarant whose statement it wishes to use against the defendant
4. the Confrontation Clause’s very mission of advancing the accuracy of the truth-determining process in criminal trials must be balanced against witness unavailability; in some instances, where the utility of confrontation is remote or a hearsay exception is firmly rooted, the unavailability requirement is inapplicable; but where an exception is not firmly rooted, the prosecution is required to establish unavailability and particularized guarantees of trustworthiness
5. appellant’s waiver of cross-examination, after the military judge’s specific question about whether the defense had any questions of the witness, satisfied the unavailability requirements of the Confrontation Clause