Should Plea Bargaining Include the Right to Confront Witnesses?

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Courtroom in the old historic courthouse, Sarasota, Fla. Photo by Clyde Robinson via Flickr

In a criminal justice system centered around the plea bargain, the Sixth Amendment’s Confrontation Clause should apply to plea bargains as well as trials, according to a forthcoming essay in the Columbia Law Review.

“A defendant’s trial rights come bundled—he must take them all, by going to trial, or leave them all, by pleading guilty,” wrote William Ortman, an assistant professor at the Wayne State University School of Law.

The Confrontation Clause of the Sixth Amendment grants defendants the right to question witnesses testifying against them, but the clause has only been interpreted to apply to defendants who proceed to a trial.

In his paper, entitled Confrontation in the Age of Plea Bargaining, Ortman argued this is severely restricting in the United States, where only 5 percent of cases end up going to trial.

Some 97 percent of federal cases and 94 percent of state cases end are resolved with a guilty plea negotiated before a trial is ever held.

“There is no good reason to design a rule that accomplishes its mission in a small fraction of the cases and leaves the others untouched,” Ortman wrote.

Ortman proposed that instead of only applying to trials, the limitation of the Confrontation Clause be changed to apply to “critical adjudication.” Trials would fall into this category, as would plea bargaining.

Preliminary and pretrial hearings would not.

“My proposal thus looks to the charge as the crucial moment for fixing Confrontation Clause witnesses,” said Ortman.

“In the age of plea bargaining, the confrontation right should attach as to any person whose ‘testimony’ the government relies on to charge a defendant.”

Ortman proposed the use of Sixth Amendment depositions, which would “incorporate adversarial testing into plea bargaining outcomes” and act as a pre-trial procedural vehicle for plea bargaining.

Although depositions are already available and are an “essential element of pre-trial civil discovery,” they’re “rarely used or even available in criminal cases,” he wrote.

“Just as the Sixth Amendment guarantees a criminal defendant a lawyer at each critical stage, it should be understood to guarantee him confrontation of the witnesses against him in adjudications that might well settle [his] fate,” Ortman added.

“Denying a defendant confrontation during plea bargaining makes no more sense than denying him an effective lawyer during plea bargaining.”

The Sixth Amendment depositions would work largely like discovery depositions, and would help the defendants learn more about the strength of the case against them.

“Prosecutors do not, of course, represent victims or other witnesses, so jurisdictions would need to decide whether to permit the deponent to bring a lawyer,” wrote Ortman.

“A lawyer for the deponent would, at least ordinarily, probably not be necessary.”

Under the regular protection of the Sixth Amendment, the witnesses would have to be qualified as “charging witnesses.” This means that only those who made “testimonial” statements would qualify for deposition.

Ortman pointed out that such restrictions would lead to Sixth Amendment depositions being more limited and less costly than other depositions.

Being able to depose witnesses also makes for a more accurate plea deal.

Ortman noted that in America’s plea-centric criminal justice system, defendants are often given higher plea deals “without viable trial defenses” because they can’t anticipate what the verdict would be.

“When lawyers negotiate plea bargains, they usually have to speculate about the credibility and effectiveness of the accusatory witnesses,” wrote Ortman.

“This information deficit impairs litigants’ ability to predict their chances of prevailing at trial, which in turn distorts plea prices. If a defendant doesn’t know that the prosecution’s eyewitness is partially blind, he may agree to an unduly harsh plea.”

By proposing Sixth Amendment depositions, Ortman says he’s proposing the second-best response to “a criminal legal system in which trials have vanished.”

In 1970, the American Bar Association (ABA) opposed depositions in criminal cases by claiming they were too costly.

“Of course, that could be said about almost any rule or procedure involved in the criminal legal system,” Ortman said.

Trials are expensive, as are appeals, and so are collateral proceedings attacking convictions.

“That something isn’t free tells us virtually nothing about whether it is worthwhile,” he wrote.

While noting that the cost implications of Sixth Amendment depositions were apparent, Ortman cited procedural rules adopted in Florida which allow defendants in criminal cases to conduct depositions.

Despite several attempts to abolish the system, Ortman noted that Florida “proved resilient.”

The American Bar Association has maintained that criminal depositions can also discourage witnesses to harsh or violent crimes from coming forward for deposition questioning.

But Ortman countered that Sixth Amendment depositions only apply to those who make testimonial statements. Young children or victims who give information to police “under circumstances where the ‘primary purpose’ of the interrogation was to deal with an ongoing emergency,” don’t qualify, which eliminates some of the most vulnerable victims to be subject to questioning.

Depositions would also be “less traumatic” than an actual trial, as victims can have an attorney present and take breaks. This could prevent the victim from having to even testify in a trial, if the defendant took a plea deal following a deposition.

Ortman also noted that in the case of violent or sexual crimes, the testimony of a witness could be given through a one-way video system, so the witness didn’t have to see the defendant face-to-face.

The author cited several state trials, including Crawford v Washington, Lafler v Cooper and Missouri v Frye, that set the current precedent for the Counsel Clause under the Sixth Amendment.

“[Those] trials support my claim that the Confrontation Clause should not be understood as a rule that exclusively governs the admissibility of evidence,” said Ortman.

“It is instead a substantive right of a criminal defendant to “confront” (or “be confronted with”) the government’s ‘witnesses’ via cross-examination.”

“Engrafting depositions into our criminal process will not solve the deepest ills of American criminal justice,” said Ortman in conclusion.

“No one thing can. But it would make the criminal legal system a notch ‘less awful.’”

The essay can be read here.

Emily Riley is a TCR Justice Reporting intern.

One thought on “Should Plea Bargaining Include the Right to Confront Witnesses?

  1. Professor William Ortman’s position makes PERFECT sense (which is probably why our courts and legislatures will not adopt it)!

    However, I would argue that defendants ought to be able to exercise their Sixth Amendment confrontational right INSTANTER after being charged with ANY criminal offense. At the very least, this immediacy would help eliminate cases predicated on false police reports which, in turn, would help eliminate wasting valuable resources (e.g., time, money, mental energy, etc.).

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