Kentucky v. Stincer, 482 U.S. 730 (1987)

JUSTICE MARSHALL, with whom JUSTICE BRENNAN and JUSTICE STEVENS join, dissenting.

The Court today defines respondent’s Sixth Amendment right to be confronted with the witnesses against him as guaranteeing nothing more than an opportunity to cross-examine these witnesses at some point during his trial. The Confrontation Clause protects much more. In this case, it secures at a minimum respondent’s right of presence to assist his lawyer at the in-chambers hearing to determine the competency of the key prosecution witnesses. Respondent’s claim under the Due Process Clause of the Fourteenth Amendment, though similar in this testimonial context to his claim under the Confrontation Clause, was not addressed by the court below, and should not be decided here. Were this issue properly before the Court, however, I would again dissent. Due process requires that respondent be allowed to attend every critical stage of his trial.

I

The Sixth Amendment guarantees the criminal defendant "the right . . . to be confronted with the witnesses against him." The text plainly envisions that witnesses against the accused shall, as a rule, testify in his presence. I can only marvel at the manner in which the Court avoids this manifest import of the Confrontation Clause. Without explanation, the Court narrows its analysis to address exclusively what is accurately identified as simply a primary interest the Clause was intended to secure: the right of cross-examination. See ante at 736 (citing Douglas v. Alabama, 380 U.S. 415, 418 (1965)). This use of analytical blinders is undoubtedly convenient. Since respondent ultimately did receive an opportunity for full cross-examination of the witnesses in his presence, the narrowly drawn standard enables the Court to conclude with relative ease that respondent’s confrontation rights were not violated, see ante at 740 and 744, even though the in-chambers competency hearing admittedly was, in this case, a "crucial" phase of respondent’s trial from which he was physically excluded. Ante at 744-745, n. 17.

Although cross-examination may be a primary means for ensuring the reliability of testimony from adverse witnesses, we have never held that, standing alone, it will suffice in every case. It is true that we have addressed in some detail the Confrontation Clause as it pertains to the admission of out-of-court statements, e.g., Ohio v. Roberts, 448 U.S. 56 (1980); California v. Green, 399 U.S. 149 (1970); and restrictions on the scope of cross-examination, e.g., Davis v. Alaska, 415 U.S. 308 (1974). But these cases have arisen in contexts in which the defendants’ right to be present during the testimony was never doubted, thus making the Court’s categorical analysis, see ante at 737-738, largely beside the point. Not until today has this Court gone so far as to substitute a defendant’s subsequent opportunity for cross-examination for his right to confront adverse witnesses in a prior testimonial proceeding. Rather, the Court has taken care not to identify the right of cross-examination as the exclusive interest protected by the Confrontation Clause. That right is simply among those "included in" the defendant’s broad right to confront the witnesses against him. Pointer v. Texas, 380 U.S. 400, 404 (1965). Though "[c]onfrontation means more than being allowed to confront the witness physically," Davis v. Alaska, supra, at 315, it must by implication encompass the right of physical presence at any testimonial proceeding. As this Court has previously recognized, "it is this literal right to `confront’ the witness at the time of trial that forms the core of the values furthered by the Confrontation Clause," California v. Green, supra, at 157, guaranteeing the accused an opportunity to compel the witness to meet him "face to face" before the trier of fact. Mattox v. United States, 156 U.S. 237, 242 (1895); see also Ohio v. Roberts, supra, at 63, and nn. 5, 6.

Physical presence of the defendant enhances the reliability of the factfinding process. Under Kentucky law, in a witness competency proceeding, the trial judge must assess the witness’ ability to observe and recollect facts with accuracy and with committed truthfulness. See ante at 741. This determination necessarily requires the judge to make independent factual findings against which can be measured the accuracy of the witness’ testimony at the competency proceeding, whether addressing facts such as the witness’ name, age, and relation to the defendant, or events concerning the alleged offense itself. These findings are critical to the trial judge’s assessment of the witness’ competency to testify, and they often concern matters about which the defendant, and not his counsel, possesses the knowledge needed to expose inaccuracies in the witness’ answers. Having the defendant present ensures that these inaccuracies are called to the judge’s attention immediately -- before the witness takes the stand with the trial court’s imprimatur of competency and testifies in front of the jury as to the defendant’s commission of the alleged offense. It is both functionally inefficient and fundamentally unfair to attribute to the defendant’s attorney complete knowledge of the facts which the trial judge, in the defendant’s involuntary absence, deems relevant to the competency determination. That determination, which turns entirely on the trial court’s evaluation of the witness’ statements, cannot be made out of the physical presence of the defendant without violating the basic guarantee of the Confrontation Clause:

[A] fact which can be primarily established only by witnesses cannot be proved against an accused . . . except by witnesses who confront him at the trial, upon whom he can look while being tried, whom he is entitled to cross-examine, and whose testimony he may impeach in every mode authorized by the established rules governing the trial or conduct of criminal cases. The presumption of innocence of an accused attends him throughout the trial, and has relation to every fact that must be established in order to prove his guilt beyond reasonable doubt.

Kirby v. United States, 174 U.S. 47, 55 (1899).

But more than the reliability of the competency determination is at stake in this case. As we recently observed in Lee v. Illinois, 476 U.S. 530 (1986), the constitutional guarantee of the right of confrontation serves certain "symbolic goals" as well:

[T]he right to confront and cross-examine adverse witnesses contributes to the establishment of a system of criminal justice in which the perception, as well as the reality, of fairness prevails. To foster such a system, the Constitution provides certain safeguards to promote to the greatest possible degree society’s interest in having the accused and accuser engage in open and even contest in a public trial. The Confrontation Clause advances these goals by ensuring that convictions will not be based on the charges of unseen and unknown -- and hence unchallengeable -- individuals.

Id. at 540. This appearance of fairness is woefully lacking in the present case. The Commonwealth did not request that respondent be excluded from the competency hearing. The trial judge raised this issue sua sponte, and only the personal protestations of respondent, a recent Cuban immigrant whose fluency in the English language was limited, preserved the issue for appeal.{1} Neither the prosecuting attorney nor the trial judge articulated any reason for excluding him. From this defendant’s perspective, the specter of the judge, prosecutor, and court-appointed attorney conferring privately with the key prosecution witnesses was understandably upsetting. From a constitutional perspective, the unrequested and unjustified exclusion constitutes an intolerable subversion of the symbolic functions of the Confrontation Clause.{2}

Had respondent invoked his Sixth Amendment right of self-representation and appeared pro se, there would be little doubt that he would have been entitled to attend the competency hearing and cross-examine the child witnesses.

The Sixth Amendment . . . grants to the accused personally the right to make his defense. It is the accused, not counsel, who must be "informed of the nature and cause of the accusation," who must be "confronted with the witnesses against him," and who must be accorded "compulsory process for obtaining witnesses in his favor."

Faretta v. California, 422 U.S. 806, 819 (1975). A defendant who represents himself is "entitled to as much latitude in conducting his defense as we have held is enjoyed by counsel vigorously espousing a client’s cause." In re Little, 404 U.S. 553, 555 (1972). Given these well-founded constitutional pronouncements, today’s decision may create for the criminal defendant a difficult dilemma: a choice between continuing to exercise his right to assistance of counsel, thereby being excluded from the competency hearing, and appearing pro se so that he may be in attendance at this critical stage of his trial. This Court has on occasion held that a forced choice between two fundamental constitutional guarantees is untenable, see Simmons v. United States, 390 U.S. 377, 394 (1968) (defendant’s testimony in support of motion to suppress evidence under the Fourth Amendment may not, under the Fifth Amendment, be admitted over objection at trial as evidence of defendant’s guilt). Today’s decision neglects the serious question whether this choice is constitutionally defensible.

II

Respondent’s right to be present at the competency hearing does not flow exclusively from the Sixth Amendment. The confrontation right attaches in this context because the competency proceeding was testimonial in nature. As the Court acknowledges, however, respondent also claims a right independently grounded in the Fourteenth Amendment’s Due Process Clause to attend any trial proceeding in which his presence "has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge," Snyder v. Massachusetts, 291 U.S. 97, 105-106, (1934). Ante at 745; see also Faretta, supra, at 819, n. 15. That the competency hearing in this case bore a reasonably substantial relation to respondent’s defense can hardly be doubted. As the Court correctly acknowledges,

although questions regarding the guilt or innocence of the defendant usually are not asked at a competency hearing, the hearing retains a direct relationship with the trial, because it determines whether a key witness will testify.

Ante at 740.

Reviewing the transcript of the competency hearing, the Court concludes that respondent’s due process rights were not violated because no question regarding the substantive testimony of the witnesses was asked and respondent has given no indication that his presence would have assisted in achieving more reliable competency determinations. Ante at 745-747. But the propriety of the decision to exclude respondent from this critical stage of his trial should not be evaluated in light of what transpired in his absence. To do so transforms the issue from whether a due process violation has occurred into whether the violation was harmless. Neither issue was addressed by the court below. More importantly, however, the Court, citing a single per curiam decision, United States v. Gagnon, 470 U.S. 522 (1985), unfairly shifts the burden of proving harm from this constitutional deprivation to the excluded criminal defendant, who was in no way responsible for the error and is least able to demonstrate what would have occurred had he been allowed to attend. The Fourteenth Amendment does not permit this presumption that the involuntary exclusion of a defendant from a critical stage of his trial is harmless.

I respectfully dissent.

1. The relevant portion of the transcript of the in-chambers hearing reads in its entirety:

Mr. Rogers [the prosecutor]: We’re dealing here with seven- and eight-year-old children, and I think, as a preliminary matter, maybe the Court should inquire of them to determine whether or not you believe that they’re competent to testify. Of course, that would still be up to the jury to determine, I understand, but I think you do have to make a preliminary decision.

The Court: Okay. Let’s bring them in one at a time. I think we need to get Mr. Stincer back in the courtroom while we’re interviewing these children in chambers.

Mr. Embry [respondent’s attorney]: We don’t have any problem with that, Judge. Sergio, we’re going to talk to the children, not about the case really, but just to see if they’re old enough to understand the difference between telling a lie and telling the truth, that sort of thing, and I think they’ll have you set [sic] outside. I will tell you what happens in a little bit.

Mr. Stincer: (phonetic).

Mr. Embry: I guess what he’s saying is, Judge, he wishes to be here. Of course, I think you’d probably have the right to handle it.

The Court: I think they’re going to have to be interviewed with counsel present only. I think I can exclude everyone.

Mr. Embry: Right, Judge. I just --

The Court: I’ll let counsel be present.

Mr. Embry: To protect my client, I’ll ask that he be allowed to stay.

The Court: Fine. Overruled. Let’s bring one of them in.

App. 1-2.

2. The reality and appearance of fairness are fully protected by the succinct holding of the Kentucky Supreme Court below:

A criminal defendant has the right to attend hearings to determine the competency of witnesses. The trial court’s determination of whether the prosecuting witnesses could testify was pivotal. Because the children’s testimony was sine qua non to the prosecution’s case, appellant’s trial might not have taken place had the trial court determined that the children were not competent to testify.

Although this court recognizes the problems and pressures encountered when dealing with child witnesses, when a defendant is placed on trial by the state for criminal conduct, he is entitled to be present and to assist his counsel at hearings to determine the competency of witnesses against him.

712 S.W.2d 939, 941 (1986).