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  • Do I Have The Right To Confront My Accuser In Sex Abuse Cases?

    Posted on by JACK MKHITARIAN

    A man confronting the accuser of sex abuse.There are few situations where the accused is more likely to be considered “guilty until proven innocent” by the public than in a sex abuse case. In no other situation is “trial by media” more likely, and under no other circumstance are you more likely to be caught up in a political whirlwind. At New Mexico Criminal Law Offices, we can help you fight back, avoid prison and perhaps even protect your reputation.

    The Right to Confrontation

    The right to confront your accuser is found in the Confrontation Clause of the Sixth Amendment to the US Constitution. It states, “in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.”

    Federal Supremacy

    The US Constitution is the supreme law of the land, and it prevails over state law. Neither the New Mexico Constitution nor any New Mexico statute, regulation, or ordinance is valid to the extent that it is inconsistent with the Sixth Amendment. The only time state law prevails over contrary federal law is when the law concerns an issue that belongs exclusively to state jurisdiction. Since the right of confrontation is a federal law, federal law prevails.

    Text vs. Interpretation: Case Law on the Right to Confrontation

    The Constitution provides the text of the right to confrontation, but the federal courts provide the interpretation. The US Supreme Court provides the ultimate interpretation through its decisions in cases involving the right to confrontation.

    Why the Right to Confrontation Has Been Watered Down in Sex Abuse Cases

    In most cases, the right to confrontation is fairly straightforward. The accused has the right to physically face their accuser, hear the accuser’s testimony, and cross-examine the accuser. Cross-examination means hostile questioning designed to uncover weaknesses or inconsistencies in the accuser’s testimony. The defense will seek to discredit the accuser, on the theory that the adversarial process will expose the truth, whatever that happens to be.

    When the Primary Issue Is Consent

    Imagine, however, how this might work in a sex abuse case. Suppose, for example, that both accused and accuser acknowledge that they engaged in sexual relations together. The accused asserts that the sex was consensual, while the accuser asserts that it was nonconsensual.

    To win, the defense must convince the jury that the sex was consensual. If the defendant was in fact guilty of raping the accuser, imagine the accuser’s trauma when facing a lawyer who is trying to prove that she consented to sex with her rapist. The anticipation of such trauma might discourage an accuser from coming forward in the first place.

    When the Accuser Is a Minor

    In other kinds of sex abuse cases, the accuser is a minor under the age of consent in the jurisdiction. The age of consent in New Mexico is 17. In this case, the accused admits to a crime (statutory rape) by admitting that sex took place. In this case, the defense’s job is to prove that the accuser’s assertion that sex took place is false. That might mean asserting that the accuser is lying.  If the defendant is guilty, it is not difficult to imagine the trauma that the victim will face in court.

    Limitations on Your Right to Confront

    Due to sympathy generated by the above-described scenarios, the federal courts have imposed certain limitations on your right to confrontation in sex abuse cases.

    Cross-Examination by Closed Circuit Video Feed

    The court can forbid you from directly cross-examining a minor who is a witness in a sex abuse case, either personally or through your lawyer. The court will allow the witness to answer questions via a closed-circuit video feed in another room. You can watch the testimony on live video, and your lawyer can cross-examine the witness via video feed.

    Another occasion when the court might allow cross-examination by video or another form of telecommunication is when a witness lives out of state.

    The “Dying Declaration” Exception

    When a witness makes a statement immediately before they die, assuming that they knew that they were going to die, courts consider it particularly trustworthy. As such, the statement qualifies as evidence even though you cannot cross-examine a dead witness. Just because the statement makes it into court without cross-examination, however, doesn’t mean that the defense cannot challenge it.

    Witness Tampering

    In some cases, a witness cannot testify because associates of the accused have kidnapped them, or terrorized them into silence through threats and intimidation. In cases like this, courts treat the defendant as having voluntarily waived their right of confrontation. This situation normally occurs only when the defendant is involved with a criminal gang.

    How a Lawyer Can Use Cross-Examination to Defend You

    Cross-examination, even by closed-circuit video feed, can expose a false or mistaken accusation. You might also need to cross-examine witnesses other than your accuser. Your lawyer can use cross-examination to:

    • Expose contradictions in the accuser’s story;
    • Expose weaknesses in the accuser’s identification of you as the perpetrator;
    • Cast doubt upon the accuser’s honesty;
    • Expose any pressure or incentives that might have motivated your accuser to give false testimony, or to pretend that they were more certain in their identification of you than they actually were; and
    • To expose hearsay.

    In other words, did the defendant personally witness what they are testifying to? Or did they just hear about it from someone else? Courts often exclude hearsay evidence from a trial.

    You Need to Respond Quickly and Decisively

    The attorneys at New Mexico Criminal Law Offices understand that every criminal case is different. The facts of your case, as well as your personal concerns and priorities, are not the same as other people’s. You are going to need aggressive, relentless, and individualized representation if you want to survive the jungle of the New Mexico criminal justice system.

    At New Mexico Criminal Law Offices, we have defended thousands of people against criminal charges, including many different varieties of sex crimes. Contact New Mexico Criminal Law Offices by calling (505) 200-2982 or by contacting us online for a free consultation.