Your Confrontation Rights in a South Carolina Criminal Case

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Enshrined in the United States Constitution and the South Carolina Constitution are important rights for criminal defendants. While each of these rights are important – they are designed, after all, to ensure a defendant receives a fair trial – a defendant’s right to confront his or her accusers is an especially important protection. Like certain other rights, however, a defendant can waive this right by words or conduct. How important is one’s right to confront others, and how can an experienced South Carolina attorney help safeguard this right for you?

The Theory Behind the Right to Confrontation

In America, it is easy to take rights such as the right to confront one’s accusers for granted. Any casual student of history knows that judicial and religious tribunals did not always guarantee an accused person such protections. In fact, it was not uncommon for individuals to be convicted of crimes and punished (even with death!) on the word of an unseen and unidentified accuser. Thankfully, the law has evolved since ancient times!
The modern right to confront one’s accusers is designed to protect a criminal defendant against false conviction. It is thought that an accuser’s testimony is more reliable if that accuser is willing to repeat his or her testimony in front of the accused and submit to questioning from the accused. While an accuser who appears in court and submits to questioning may still lie or falsely accuse another person of a crime, it is believed that the examination process is capable of revealing falsehood and inconsistencies in a person’s testimony. The right to confront one’s accusers is closely related to the concept of hearsay, the doctrine which prevents certain out-of-court statements from being admitted in court absent the speaker’s physical presence.

Who May I Confront?

In general, an accused is guaranteed the right to confront an individual who has leveled a criminal accusation against him or her or who has made a statement that tends to implicate the accused in criminal activity. This usually means that the prosecution is not able to use a person’s testimony or statements made against the accused unless the prosecution brings the person into court and has them repeat his or her statements in the hearing and presence of the defendant. There are, however, certain exceptions to this general rule:

  • Very young or delicate children: Recognizing that testifying and being confronted by the perpetrator of abuse (most often a family member) can be extremely traumatic, the law sometimes allows for young or sensitive children to testify and have this testimony admitted in court without having to actually face the person they are accusing of criminal activity. In some cases, the court may permit the child to sit behind a screen that prevents the child from seeing the person he or she is accusing (or vice versa). In other cases, the court may permit the child to testify in a different room in which only the attorneys and other key court personnel are present (in this case, the child’s testimony is transmitted live to the courtroom via closed-circuit television).


  • Individuals who cannot be present because of the accused’s own conduct: Of course, a criminal defendant is not entitled to confront a witness or accuser where the defendant has made it difficult or impossible to secure the accuser’s presence in court. This would give criminal defendants an incentive to “dispatch” their accusers before court and then avoid prosecution on the grounds that they were not able to confront their accusers. This situation arises when, for example, the defendant kills the accuser or so threatens and frightens the accuser that he or she is afraid to appear in court to confront the defendant.


  • Individuals who do not make “testimonial” statements: In some cases, a criminal defendant may not be entitled to confront a person who has not made a “testimonial” statement against him or her. A “testimonial” statement is usually defined as a statement made by a person with the intention of aiding or initiating a criminal investigation. For example, a person who tells a detective that “I saw so-and-so commit a crime” is making a testimonial statement, whereas someone who calls his or her friend or family member screaming for help as he or she is being stabbed may not be making a testimonial statement. (Note, though, that hearsay rules may still keep the statement from being admitted in court even if the defendant is not entitled to confront the witness).

Asserting and Waiving the Right to Confront

Normally, the defendant exercises his or her right to confront his or her accusers by requiring the prosecution to produce the accuser(s) in court and cross-examining these individuals at trial and/or at other hearings. The defendant can easily waive this right to confrontation, however, by failing to object to the introduction of testimony that violates this right. For instance, suppose in a drug crime case the prosecution subpoenas the primary investigating officer. That officer testifies that he arrested the defendant based upon the statements made by an eyewitness at the scene who stated he saw the defendant in possession of drugs and attempting to sell the drugs to others. Such a statement would violate both hearsay laws and the defendant’s right to confront his or her accuser. However, the defendant may be deemed to have waived his or her rights if he or she does not object to the testimony at the time it is offered. If such an objection is made, the prosecution would either have to show that the eyewitness is available to be cross-examined (or that an exception to this requirement applies) or else the testimony will be excluded.
If you have been charged with a criminal offense in South Carolina, it is important to retain experienced criminal defense legal counsel in order to adequately protect your rights. Contact David R. Price, Jr., P.A. as soon as possible if you have been charged with a crime or believe you are the subject of a criminal investigation. He will ensure your rights are respected and asserted throughout your case. Call his office or contact his office online today for assistance.


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