Should Plea Bargaining Include the Right to Confront Witnesses?
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.
“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.
“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.”
“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.”
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.
Despite several attempts to abolish the system, Ortman noted that Florida “proved resilient.”
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.
“[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.”
Emily Riley is a TCR Justice Reporting intern.