The Confrontation Clause Self-Quiz








Frank is on trial for murdering his wife. Frank’s brother, Jesse, is one of the primary witnesses for the prosecution, and is expected to testify that he saw Frank enter their parents house on the night of the murder carrying a bloody knife. Jesse is bigger and stronger than Frank and is not afraid of him, but there is bad blood between them and he refuses to be in the same room as Frank – including the courtroom. Should the judge order Frank out of the court so that Jesse will testify?
Choice 1 Yes, because Jesse’s testimony is vital to the prosecution’s case.
Choice 2 Yes, because Frank’s lawyer will still have the opportunity to confront Jesse by cross-examination.
Choice 3 No, because this would violate the Confrontation Clause.
Choice 4 No, because sibling rivalry is not a officially recognized phenomenon.
Frank’s elderly mother is also scheduled to testify against him. She is expected to testify that earlier in the week he had requested to borrow a “strong, solid knife that won’t break too easy.” She is frail and truly frightened of her elder son’s violent outbreaks. In fact, he has been arrested in the past for domestic abuse for beating up his mother on several occasions. Like Jesse, she refuses to be in the same room as Frank. Should the judge accommodate her fears and arrange for her to testify outside of Frank’s presence?
Choice 1 Yes, because her testimony is vital to the prosecution’s case.
Choice 2 Yes, if she testifies in a separate room accompanied by the prosecutor and Defense attorney and the testimony is televised for the judge, Defendant, and jury to see.
Choice 3 No, because this would violate the Confrontation Clause.
Choice 4 No, because protecting Defendant’s prior victim from exposure to risk of harm is not an important public purpose.
Finally Frank’s father takes the stand. Frank has always hated his father and wants to question him personally, hoping to pose some rather embarrassing questions. Does he have the right to directly question an adverse witness?
Choice 1 Yes, as per the Confrontation Clause.
Choice 2 Yes, so long as the witness agrees.
Choice 3 No, the Confrontation Clause does not grant that right.
Choice 4 No, because this is a close family relative and the possibility of complicity between Frank and his father to provide false testimony is too high.

Mr. Marsh is testifying at a trial as an expert witness for the prosecution. His testimony concerns the meaning of blood-splatter at a crime scene and what that tells us about the attacker's height, weight and position in relation to the victim. On cross-examination the defense attorney asks Mr. Marsh the following question: “Were you ever caught cheating in college?” Should the judge permit the question?
Choice 1 Yes, because it tends to impeach the witness and reflects negatively on his capacity for honesty.
Choice 2 Yes, because anything can be asked on cross-examination that might help the defense.
Choice 3 No, because it exceeds to scope of the testimony given on direct examination.
Choice 4 No, because whether or not Mr. March cheated in college is irrelevant to the blood-splatter issues.

Cartman is arrested for stealing some punch and pie from a neighbor’s house. During the trial Cartman regularly shows up dressed as a female prostitute. He jumps up and down on the table screaming “Whatever. Ah do what ah want!” The judge asks him repeatedly to be quiet and show appropriate respect in the courtroom. When Cartman refuses the judge has him handcuffed to a chair, gagged, and placed in the hallway so that he cannot make faces at anyone. Cartman claims this violates his rights under the Confrontation Clause, as he cannot see the witnesses testifying against him. Is he right?
Choice 1 Yes, because there is no conflict between him and any individual witness which requires separation.
Choice 2 Yes, because he may appear dressed however he likes, and the action is clearly retributory.
Choice 3 No, because a judge has great discretion to avoid distractions in the courtroom.
Choice 4 No, because he has effectively waived his right to be in the courtroom.

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