The examination of a witness is an important feature of the law, specifically concerning criminal law. It is because of the Sixth Amendment, a defendant is protected through the Due Process Clause. The Sixth Amendment to the U.S. Constitution sets out many rights for defendants during a criminal prosecution, including the right of the accused to confront their accusers. A number of rights protected under the Sixth Amendment to a person accused of a crime include: a guarantee to the accused criminals the right to a speedy and public trial by jury, gives defendants the right to know what charges are being made against them, to cross-examine hostile witnesses, the right to confront a witness, and be represented by a lawyer in court. The relevant text of the Confrontation Clause of the Sixth Amendment reads as follows: “In all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him”. The intent of the Clause is to prevent the conviction of a defendant. The confrontation clause guarantees criminal defendants the opportunity to face the prosecution’s witness in the case against them and dispute the witnesses’ testimony. Evidence may be inadmissible or admissible to determine the fairness of a trial. Through the Sixth Amendment a number of rules regarding qualifications, and admissibility, as well as rules that limit admissibility, all have and affect on the fairness of a trial. Throughout this paper I will focus on one major question: How does the Sixth Amendment right to cross-examination and the confrontation of a witness effect impact the fairness of a trial?
According to Jefferson Ingram, author of Criminal Evidence (2015), before a witness can qualify for eligibility to testify in a trial, one must be able to prove sufficient evidence to support a finding that the witness has personal knowledge in the connection of the crime on trial. Rule 602 states that a witness may testify to a matter only if a foundation is laid that the witness has personal knowledge of it. In general, this means a witness must have been present at and observed all events they testify about. There are three exceptions: experts may testify based on second-hand knowledge; properly conducted public opinion polls are admissible; and a witness may testify to matters of family history, even if some of those matters happened before the witness's birth. Witnesses generally may not speculate about another person's state of mind, thought processes, or attitudes. That means it is the obligation of the person calling a witness to establish by preliminary questions that the witness has personal knowledge of something relevant. A witness is typically presumed competent, unless they fail to display credible personal knowledge of the matter at hand. Competency of a witness is based off of a number of factors. A competent witness should be capable of receiving, remembering, and narrating impressions. A witness should also be sensible to the obligation of an oath before the person can be permitted to testify (U.S.Legal, 2017). Witnesses must meet the four elements of competency: (1) oath, (2) perception, (3) recollection, and (4). Prior to testifying in a trial, a witness must give an oath to testify truthfully. If a witness fails to take an oath and tell the truth, and refuse to testify, this creates a problem for the trial because this potential witness may be holding on to statements that provide evidence to the trial. This creates an issue under the Sixth Amendment because the defendant will not be granted right to confront a witness (Ingram, 2015). Defects in perception, recollection and communication may result in failure to show competency and result in the impeachment of the witness’ testimony. A potential witness’ capacity to be able to observe, remember, or narrate all affect a trial. Inconsistencies and contradictions will result in discretion of the judge on whether to admit any evidence or not, as well as determine the impeachment. These elements of competency are useful in achieving a fair trial. Almost everyone is competent to be a witness so long as they possess the minimal mental capacity to have perceived the events, can remember them, can communicate in some fashion, and promises to testify truthfully. Incompetency is determined before a witness gives any testimony. If a potential witness is found to be incompetent before trial, this person cannot take the stand or give any testimony at all. It is important under the Sixth Amendment that a witness presented to the court is competent so that the trial is fair and does not result in error.