How literally do courts in USA interpret face to face confrontation right of defendant under sixth amendment? I will soon be a major witness in a criminal trial of another in the USA. I was present at the scene and was asked by state to testify at criminal trial. The defendant is facing felony charges against the person and property (burglary) In meeting with prosecutors, I was briefed on importance of my role as an witness present on site and one of the victims. As I understand, absence of important witness testimony due to witness unavailability is a common reason for jury acquittal or nolle prosequi, refusal of state to prosecute any further. During the trial days scheduled, I have important commitments at work and family commitments during upcoming holidays. It will be difficult to find a work replacement where I work on short notice and due to hiring freeze. I am planning on seeing if a video taped testimony to be played at trial would suffice in lieu of actual face to face confrontation with defendant. I know defendants have right to have face to face confrontation with opposing witnesses under the Sixth Amendment. I have reviewed SCOTUS precedent in Confrontation Clause cases such as Maryland v. Craig, Crawford v. Washington etc., but the circumstances in my case differs. (Victims are adults with the crime being of a non sexual nature, and 911 calls are not involved.) How strict are state courts with criminal jurisdiction with enforcing an actual face to face opportunity for defendants to cross examine opposing witnesses? How are courts likely to interpret video recorded testimony?
I am planning on seeing if a video taped testimony to be played at trial would suffice in lieu of actual face to face confrontation with defendant. This does not satisfy the confrontation clause. At a minimum, a testifying witness must be subject to being cross-examined by defense counsel. The Confrontation Clause guarantees an opportunity for effective cross-examination. Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam). For example, in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), and Bullcoming v. New Mexico, 564 U.S. 647 (2011), the Court ruled that admitting a lab chemist's report of his analysis into evidence, without having him testify, violated the Confrontation Clause. This would have been true even if the chemist had read the report aloud on videotape in response to a prosecutor's questions, rather than putting it in writing and signing it. There are rare cases where an exception is made to allow child abuse victims to testify live via closed circuit television, rather than in the physical presence of the defendant and the defendant's lawyer. Remote live testimony is rarely allowed in the case of adults. But technically feasible videoconferencing is a new technological development, so the constitutionality of live videoconference testimony subject to cross-examination remains a largely open issue in constitutional law. This is a particularly close question in Alaska, where there is a state constitutional right to participate in court proceedings and legislative hearings remotely (Alaska is the only jurisdiction in the U.S. to have such a right.) Still, in the vast majority of cases, in person, live testimony in the courtroom is required as a matter of court rules that apply in criminal cases, whether or not this is constitutionally required. There are also rare cases where video of an unavailable witness (e.g. a murder victim, or a witness who died before the trial was held) might be admitted in lieu of live testimony, either taken in a non-testimonial fashion, see Crawford v. Washington, 541 U.S. 36 (2004), or as a &quot;preservation deposition&quot; in which defense counsel had a right to cross-examine the witness and the defendant has a right to be present to assist the defendant's counsel, taken when an elderly or infirm or deportable witness is likely to be unavailable at trial. Most states prohibit the use of preservation depositions in criminal trials when the witness is available to testify, but this requirement isn't necessarily a constitutional confrontation clause issue. Also, again, neither of these exceptions would apply in the circumstances found in the question. Footnote Re Hearsay v. Confrontation Clause The video statement suggested in the question would also violate the non-constitutional court rule of evidence that prohibits hearsay testimony, subject to many exceptions, in most civil and criminal trials. In a nutshell, the hearsay rule prohibits courts and juries from considering evidence of statements made by someone who is not a party to a case or their co-conspirator or affiliate, that was not subject to cross-examination, offered into evidence to prove the truth of the statement made by that person, unless one of about two dozen exceptions to the rule apply (none of which would be likely to apply under the facts set forth in question). In the United States, the hearsay rule, and the confrontation clause that applies in criminal cases but not civil ones, heavily overlap. But the two rules excluding certain kinds of evidence from criminal trials are independent of each other and are not identical. There is some testimony which is not excluded from evidence by the hearsay rule that is still subject to the confrontation clause. For example, the lab reports that were held to be inadmissible without supporting live testimony from their authors subject to cross-examination in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), and Bullcoming v. New Mexico, 564 U.S. 647 (2011), would often be admissible under the hearsay rule of evidence in a civil case as business records. Likewise, there is some testimony which is not excluded from evidence by the confrontation clause which is still barred by the hearsay rule. For example, a statement made in a letter or email or text message by someone who was not a criminal defendant or co-conspirator who is available to testify that was not a business record, that was not intended at the time it was written to be used in a court case or a report to public officials, would still be barred from evidence under the hearsay rule in most cases. But it would not be excluded from evidence by the confrontation clause under Crawford v. Washington, 541 U.S. 36 (2004) because it was not testimonial in nature. Of course, in a real world criminal case, both the hearsay rule objection and the confrontation clause objection must be satisfied for evidence to be admitted if the defendant's lawyer objects to the admission of the evidence.
The government must have reasonable suspicion to stop you and ask you questions. The government must have probable cause to arrest you. The government cannot question you if you have invoked your 5th Amendment rights The government must release you if you post bail which is set by a magistrate in some cases but can be posted without conferring with a magistrate for many minor offenses for which the amount is set in advance. Also, you can only be constitutionally held for a certain period of time without appearing before a court for an initial appearance at which you are charged and typically you have an attorney assigned for you if you cannot afford one. Generally speaking a lawyer for a defendant will either post bail on behalf of the client, or will seek to invoke the client's 5th Amendment right to silence and 6th Amendment right to counsel (including the right of a lawyer to visit his client in jail) making further detention much less useful, while challenging law enforcement to articulate probable cause for the arrest with the implication that a civil lawsuit and suppression of evidence and loss of credibility with the local judge could follow if they fail to do so. If the client is not brought before a court by the constitutional deadline (unusual, but not unheard of), the lawyer can bring this to the attention of the court and have the court demand that his client be brought before the court. Of course, strictly speaking the defense lawyer can't force the police to do anything. Instead, the defense lawyer persuades the police to do something based upon what a court is likely to do, or has already done, as a result of their conduct so far. Also, of course, it isn't always possible for a lawyer to get his client out of jail. If the police do have probable cause and the offense is not one for which bail is set in advance, it is not possible for the client to be released until bail is set by a judicial officer such as a magistrate and bail (if granted at all) is posted, which may be beyond the client's means in the case of a serious offense, particularly if the client is considered by the magistrate to be a flight risk. On TV and books, the person that the police have arrested is usually someone that the police had no probable cause to arrest but suspect of a crime anyway, and the police usually fold when called on the fact that they lack probable cause by the lawyer. Less commonly, on TV and in books, the lawyer facilitates the payment of bail on behalf of his client.
The situation you describe is extremely unlikely First, you will have been required to give a statement to the police who would have asked you most or all of the questions that you suggest before anyone gets anywhere near a courtroom and likely before any arrest has been made. That statement will be part of your evidence in chief. As in &quot;Is this your statement?&quot; &quot;Yes&quot;. &quot;Is this your video recording?&quot; &quot;Yes&quot;. After that, your evidence in chief is pretty much done. A witness of fact (rules for expert witnesses are different) can only testify as to what they personally sensed and what their state of mind was. So questions about what you saw, heard, tasted etc. are all perfectly legitimate as are questions about what you thought or felt. You are required to answer these questions honestly - if that means &quot;I don't know&quot; then say &quot;I don't know&quot;. All of the hypothetical questions look fine but as I said, they will all have answers in your police statement. The only one that's off-limits is &quot;&quot;Do you feel that a crime has been committed?&quot; - nobody knows if a crime has been committed; that's why we're having a trial.
This is not possible, simply as a matter of definitions and legal terminology. Someone who is "represented by one or more attorneys" is by definition not pro se which means representing yourself without an attorney. There are very rare instances in criminal trials involving serious consequences in which a pro se defendant is allowed to have an attorney advisor who does not represent them in court in an agency capacity, but, first, people who do that almost always lose and are almost always mentally ill (although not necessarily eligible for an insanity defense), and second, because courts generally don't allow this in any other circumstance (at least in court). The concept of getting advice from an attorney without having full fledged representation is called a "limited representation" and the law regarding limited representations more generally varies greatly from jurisdiction to jurisdiction and even between different courts in the same place. For example, Colorado's state courts and Colorado's federal courts have different rules for limited representations.
If the question asks, "did you do X" where X is or includes a crime that you could be criminally prosecuted for, you can invoke the 5th amendment in refusing to answer that. I have seen that done and seen that objection to the question sustained in court. However, if admitting to X would provide only civil liability, then the 5th would not apply. At trial, you may also have to take care not to give direct testimony on things that are so closely related that you "open the door" to being required to answer that question. For example, you can't say "I don't owe because I did X" and then expect to not have to answer "So just to be clear, did you do X?" Also, depending on context, invoking the 5th might cause a jury to view your testimony more skeptically (cpast points out that "For civil cases, adverse inferences based on pleading the fifth are totally okay"), and if that's going to come up you should ask your attorney about whether or not it'd be a good idea strategically.
In every U.S. jurisdiction this is controlled by Rule of Professional Conduct 3.7 which is modeled on the American Bar Association's Model Rules of Professional Conduct, although the exact language is not perfectly uniform. It says: Advocate (a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless: (1) the testimony relates to an uncontested issue; (2) the testimony relates to the nature and value of legal services rendered in the case; or (3) disqualification of the lawyer would work substantial hardship on the client. (b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9. In a criminal prosecution, exceptions (a)(2) and (a)(3) almost never apply. A prosecutor's fees are generally paid by the government without reimbursement from criminal defendants making (2) inapplicable, and there are almost always multiple prosecutors in the same prosecutor's office making (3) unlikely as well. In rare instances where every prosecutor could be disqualified as a witness (e.g. a crime taking place physically within an all office meeting of the prosecutors office where no one was absent), a prosecutor from another jurisdiction in the same state would be appointed as a special prosecutor to handle the case due to the de facto conflict of interest. Rules 1.7 and 1.9 are conflict of interest rules, which rarely apply unless a crime is directed at the prosecutor's office itself, or perhaps was allegedly committed by a prosecutor (in which case a special prosecutor is appointed to address the conflict). Otherwise, another lawyer in the same office can handle the case that the lawyer who was a witness cannot. So, in practice, in criminal cases, prosecutor testimony only concerns uncontested issues pursuant to (a)(1) (e.g. testimony that venue is proper because the city of Evergreen is located in Jefferson County, Colorado, or that the defendant was arrested on the date shown in the police report). Note also, that the lawyer-witness rule applies only to advocacy at trial. A lawyer who is trial witness can still participate, for example, in motion practice, in directing colleagues in trial preparation, in interviewing witnesses prior to trial, in making plea bargaining decisions, in scheduling conferences, and in appellate work in the case. Official comment number 2 explains the justification for the rule: The tribunal has proper objection when the trier of fact may be confused or misled by a lawyer serving as both advocate and witness. The opposing party has proper objection where the combination of roles may prejudice that party's rights in the litigation. A witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. It may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof.
There is no requirement to interview the victim and/or the suspect prior to filing charges. Often statements are taken from the parties involved/witnesses by police and presented to the District Attorney's office as evidence. However charges can be filed without either party being interviewed, especially by the DA. This can often be the case in things like domestic violence cases, where the victim refuses to cooperate and the perpetrator refuses to talk (&quot;lawyer up&quot; or invoke 5th amendment rights). Charges can be filed based on circumstantial evidence of the crime (in the example, marks on the fist of the perpetrator and injuries to the victim, along with proximity). The police will try to interview the suspect and/or victim, but usually the prosecutor does not get involved at this point until charges are filed and the defendant has retained a lawyer (or declined one).
From a US perspective, in a word, "no". Firstly, "presumption of innocence" is in a trial, not in police interactions. Being arrested does not violate the presumption of innocence. Police do not need any reason to interact with you or ask you questions. Police can arrest you if they have probable cause to suspect you have committed a crime, but this is not always necessary. More on this later(in the fourth section). Secondly, I wouldn't describe requesting to see your ticket, or any document as a "violent communication", in general. It may be rude or insulting, but not violent. (Also "violent communication" is not a legal term. The closest legal terms, verbal assault and threatening communication, are also not this.) More over, there is no indication of am implication of lying in this request. Thirdly, there are many situations in which possessing a document or credential is not sufficient; one must legally display or present them upon request. For example, multiple occupational licenses such as liquor licenses and barber/cosmetology licenses require that the licenses be prominently displayed; whereas, in California at least, a vehicle driver on a public road must not only possess their driver's license and proof of insurance, they must produce them upon the request of any law enforcement officer (Source: https://www.dmv.ca.gov/portal/dmv/detail/pubs/brochures/fast_facts/ffvr18). Fourthly, there are situations in which you can be legally searched and questioned without reasonable suspicion. Examples of this include boarder searches and sobriety checkpoints. Sources: (US Supreme Court rulings): https://en.wikipedia.org/wiki/United_States_v._Martinez-Fuerte; https://en.wikipedia.org/wiki/Michigan_Department_of_State_Police_v._Sitz A note on sources: bdb484 and I have opposing court case sources. My sources have binding precedent over all courts in the US, save the US Supreme Court, whereas theirs don't have any binding precedent, but are more directly on-topic.