Sunday, March 13, 2011

Due process confrontation rights

A California lawyer has written me raising an important issue on which I don't believe I've written. I'll only offer a few thoughts, because I'm sure others have thought more about this. The lawyer writes:

I am interested in any resources you know of which deal with the question of cross examination rights being denied in domestic violence, restraining order courts.

Here in California, we have courts hearing protective order applications in a "Jerry Springer" style, where in the majority of cases, one litigant, probably both, are not represented by counsel, and the judge takes a statement of accusation from the applicant, then asks the respondent about it, and goes back and forth until announcing a decision.

It seems this procedure, if it can even be called that, is commonplace in most California counties and probably around the country.

A common problem in all this is that, even if the accused person knows of questions which would greatly impeach the accuser, he is not asked if he has any questions, and often, as in the case of my appeal, if he asks the Court to ask questions, is simply blown off at the Court's whim, without any reason being given, unless of course he has an attorney.

In other words, the right to confrontation is often denied to the accused person. This is so even despite a California Supreme Court case, Elkins, which restates that litigants in family court, (where these order are issued under CA Family Code 6200) retain all procedural rights that other civil litigants have.

I am hoping you have knowledge of academics, judicial councils, state Bar associations, etc, who have expressed concern that basic due process rights, as I say confrontation being primary, are denied in these hearings.

Please let me know of anything that will help.

So, first off, the Confrontation Clause as such does not apply -- it only applies to criminal prosecutions. But in other contexts, a right of confrontation is incorporated in the right of due process. The key case is Morrissey v. Brewer, 408 U. S. 471 (1972), which involved revocation of parole. It seems to me that the situation posed by the reader – a hearing with significant consequences for the litigant, witnesses testifying from the stand, and the litigant not given an opportunity to pose any cross-examination – presents a strong case for holding that the due-process right to confrontation has been violated. The basic concept that if a witness testifies for one side the other side gets to cross-examine that witness is deeply established in Anglo-American jurisprudence.

The interesting problem, it seems to me, will arise if the state, in a non-criminal context, decides not to present a live witness because it is aware of the due-process confrontation right, and instead presents, say, a video-tape of a statement taken beforehand for use in the hearing. Effectively, the witness has been able to testify without coming to court; the idea that statements made out of court with litigation in mind may be deemed to be testimonial, and the focus of the confrontation right, lies at the heart of Crawford, and has force in this context as well. But presumably a narrower view of what should be considered testimonial, or a broader set of exceptions, or a looser sense of what the right means, or some combination of the three, must apply in this context than in the criminal context. If the approach the Supreme Court used in the Confrontation Clause context in Michigan v. Bryant had instead been applied in other contexts such as hearings for restraining orders or parole revocation, it wouldn't have been nearly so bad.


NativWorld Timing. Knowledge. Empowerment. said...

I Have Been A Pro-se Student, 2 1/2Yrs 'Cos Of This. $150,000. For Public Defenders In 6 Trials, In The Sloshy UnderGrowth Of Family Law With The State. It took this studying to learn a Hearing is to be heard. My only right was to sit in Court. My studys found that in the 'hybrid' between Criminal/Civil Law of Juvenile Law, There Ought To Be More In The United States To Loose Your Family, Without A Right To Confront A 'Scientific' Mental Health Evaluation. (Hired Guns' Testimonial Overview Statement). If One's Mind Is Like A Lab Experiment, Testimony By A Supervisor Of Whom Never Met The Daubert-Like Standard In My State, By Doing A Clinician On Me, Why Shouldnt I Have The Same Right As A Test In A Lab? Evaluators were available. Ive read a quote from a Nevada Supreme Court Judge stating this is the Civil Equivalent to a Capital Murder Trial, yet I was told by a Pro Bono Workshop, it is only Civil. And it is. I say, 1 should Indeed go thru the 6th, thru the 5th. It is like a death penalty. Not a single call/discovery/motion/witness allowed (stated in email to Me), either.

Minnesota Criminal Lawyer said...

Interesting post. Seemed to bring a lot of new information to light.


Anonymous said...

FYI, the Virginia Court of Appeals just released this case involving the due process right of confrontation.

Elena Garella said...

person's right of cross-examination and confrontation of witnesses against him in noncriminal proceedings is a part of procedural due process guaranteed by the Fifth Amendment and the Fourteenth Amendment to the federal Constitution, where there is involved a threat to life, liberty or property. "[The] right to hold specific private employment and to follow a chosen profession free from unreasonable governmental interference comes within the 'liberty' and 'property' concepts of the Fifth Amendment." ( Greene v. McElroy, 360 U.S. 474, 492 [3 L.Ed.2d 1377, 1388, 79 S.Ct. 1400, 1411].)

CA(2) (2) Such procedural due process is lacking when a person is refused a license that is necessary to the practice of a profession or other occupation because of charges made against him ex parte, and when he seeks and is denied the opportunity of confronting the persons making the charges and of presenting evidence to refute such charges. ( Willner v. Committee on Character & Fitness, 373 U.S. 96, 101 [10 L.Ed.2d 224, 228, 83 S.Ct. 1175, 1179].)

August v. Department of Motor Vehicles,264 Cal. App. 2d 52, 60,70 Cal. Rptr. 172, 178,1968 Cal. App. LEXIS 2048, 10-11(Cal. App. 4th Dist.1968)

Darren-Chaker said...

Great blog on the right to confrontations. Another site for criminal law I like is,

barnone365 said...

The Confrontation Clause of the Fourteenth Amendment is applicable because during the Order to Show Cause hearing, accusations and allegations of any of the forms of abuse are being levied and, unless the trial court has set future dates for the matter to be heard, evidentiary proceedings, discoveries, etc. . . that Order to Show Cause hearing is the only forum which, under section 527.6, due process requires that the defendant be afforded the right to present evidence and conduct cross-examination because there is no full trial on the merits following the issuance of the injunction after the hearing and that hearing therefore provides the only forum the defendant will have to present his case (Schraer, supra, 207 Cal.App.3d at pp. 732-733; accord, Nora v. Kaddo (2004) 116 Cal.App.4th 1026, 1029.) The relief available under that section is analogous to a permanent injunction (Schraer, at p. 732), which the trial court effectively ordered here, with no contemplation of further evidentiary proceedings.