CONFRONTATION

A fundamental right of a defendant in a criminal action to come face-to-face with an adverse witness in the court's presence so the defendant has a fair chance to object to the testimony of the witness, and the opportunity to cross-examine him or her.

The bill of rights (the first ten amendments of the U.S. Constitution) specifies certain rights that are inherent to all individuals, in order to protect them from the arbitrary use of government power. Among these is the right to confront one's accusers in a criminal case, which derives from the sixth amendment :"In all criminal prosecutions, the accused shall enjoy the right …to be confronted with the witnesses against him." The Confrontation Clause, as this part of the Sixth Amendment is generally known, was understood traditionally to mean that criminal defendants had the right to be put in the presence of their accusers in open court, face-to-face, in front of the jury. This right was intended to give defendants the opportunity to cross-examine adverse witnesses, as well as to provide the jury with an opportunity to observe the demeanor of, and to make inferences regarding the reliability of, those witnesses. The substantive meaning of this right has been the subject of great debate, especially regarding the trying of child abuse cases involving child witnesses. Does the Confrontation Clause provide the right to confront witnesses in open court, or does it simply convey a right to cross-examine witnesses?

Like most of the protections given criminal defendants in the Constitution, the right of confronting one's accusers has its origins in English common law and in the experiences of the colonies before the American Revolution. Until the sixteenth century, the right of confronting one's accusers was nearly absent from the Anglo-American legal tradition. Then, with the introduction of the right to trial by an impartial jury and the firm establishment of the presumption of innocence, the right of confrontation came to be seen as an integral part of a proper defense of the rights of the accused. In the American colonies, the salem witch trials in particular created an impetus for establishing the right of the accused to a face-to-face confrontation with the accusers—who, in those cases, were mostly children anonymously accusing their elders. Horrified by the widespread use of coerced and anonymous accusations in these trials, and by the executions that resulted, the Massachusetts Legislature established the right to confront one's accusers. Soon after, the colonial governor disbanded the special Salem court for witch trials; few accusers were willing to face their targets in open court.

The experience of the Salem witch trials made a great impression on the other colonies. By the end of the sixteenth century, most of the colonies had established in their constitutions a right of confrontation that was similar to that recognized in Massachusetts. Thus, at the time of the writing of the Constitution, the right was so firmly entrenched that its inclusion in the Bill of Rights elicited no debate.

The Confrontation Clause gives criminal defendants two specific rights: the right to be present during all critical stages of trial, and the right to confront adverse witnesses. Each of these rights has certain limitations.

The right to be present during critical stages of trial allows defendants to participate actively in their defense by listening to the evidence against them and consulting with their attorneys. However, unruly, defiant, disrespectful, disorderly, and abusive defendants can be removed from the courtroom if the judge feels it is necessary, to maintain the decorum and respect of a judicial proceeding. If a defendant persists in disorderly conduct, yet demands to remain in the courtroom, the Sixth Amendment allows a trial court to have that defendant bound and gagged so that his or her presence does not disrupt the proceedings (Tyars v. Finner, 709 F.2d 1274 [9th Cir. 1983]).

The second prong of the Confrontation Clause guarantees defendants the right to face adverse witnesses in person and to subject them to cross-examination. Through cross-examination, defendants are allowed to test the reliability and credibility of witnesses by probing their recollection and exposing any underlying prejudices, biases, or motives that may cause the witness to distort the truth or to lie. However, the right of cross-examination also has limits. Courts may restrict defendants from delving into certain areas on cross-examination. For example, defendants may be denied the right to ask questions that are irrelevant, collateral, confusing, repetitive, or prejudicial. Defendants also may be prevented from pursuing a line of questioning that is meant solely for the purpose of harassment.

Under exceptional circumstances, defendants may be denied the right to confront their accusers face-to-face. In Maryland v. Craig, 497 U.S. 836, 110 S. Ct. 3157, 111 L. Ed. 2d 666 (1990), the U.S. Supreme Court upheld a statute that permitted a small child to testify via a one-way, closed-circuit television from a remote location outside the courtroom. In such situations, the Court ruled, the trial court must make a specific finding that keeping the witness out of the presence of the defendant is necessary to protect the witness from traumatic injury. The Craig decision has been the subject of some debate. victims' rights advocates and some prosecutors support the additional protection of witnesses, but defense attorneys have argued that shielding children from confrontation is risky, given that the reliability of children's testimony is often in dispute. Even when a witness is permitted to testify outside the presence of the accused, defendants maintain the right of cross-examination.

The importance of a defendant's right to confront and cross-examine his accusers face- to-face in open court was revisited by the U.S. Supreme Court in Lilly v. Virginia, 527 U.S. 116, 119 S. Ct. 1887, 144 L. Ed. 2d 117 (1999).

The case began when the state of Virginia charged Benjamin Lee Lilly with capital murder and called his brother Mark Lilly to testify against him during the trial. When Mark invoked his privilege against self-incrimination, the prosecution sought to introduce a statement that Mark had made to the police in which he had admitted being with Benjamin on the night of the murder, and had told police that he saw Benjamin kill the victim.

The trial court admitted Mark's statement into evidence over Benjamin's objection that it violated the Confrontation Clause. In particular, Benjamin argued that the fifth amendment gave him the right to confront his brother face- to-face in open court, and that admitting his brother's out-of-court, hearsay statement without allowing him to cross-examine Mark violated that right.

The Virginia trial court overruled Benjamin's objection, finding that the statement fell within a "firmly rooted" hearsay exception. In Virginia, the trial court said, it is well settled that declarations against interest are a settled hearsay exception, and thus admissible against a criminal defendant without the declarant being subject to cross-examination.

A declaration against interest is an out-of-court hearsay statement made by a declarant who implicates himself in criminal activity or other wrongdoing, the trial court explained. Because such declarations are not considered to be self-serving, the trial court continued, they are deemed inherently trustworthy. In this case, the trial court noted that Mark Lilly had admitted committing a number of crimes that would have made him eligible for long prison terms if convicted.

Based in part on Mark's statement, the jury convicted the defendant of capital murder and sentenced him to death. The defendant appealed, and the Virginia Supreme Court affirmed. Lilly v. Commonwealth, 255 Va. 558, 499 S.E.2d 522 (Va. 1998). Although Virginia's high court recognized that Mark's statements were self-serving to the extent they shifted blame for the more serious crime of murder, from himself to his brother, it said that the self-serving nature of the statement went to the weight of the evidence, not its admissibility. The court also underscored the fact that prosecutors gave Mark no express promise of leniency in exchange for his statement.

The U.S. Supreme Court disagreed, reversing the Virginia Supreme Court's decision and remanding the case for further proceedings. Writing for a plurality of the justices, Justice john paul stevens ruled that an accomplice's statements that tend to shift or spread the blame to a criminal defendant are presumptively unreliable, when that accomplice has made himself or herself unavailable for cross-examination by invoking the privilege against self-incrimination.

The "absence of an express promise of leniency," Stevens wrote, does not ensure reliability because "police need not tell a person who is in custody that his statements may gain him leniency in order for the suspect to surmise that speaking up, and particularly placing blame on his cohorts," could be in his best interest. Stevens observed that while the presumptive unreliability of Mark's statement could be rebutted on remand to the trial court, any rebuttal evidence would need to take into account that the statement had been made in response to the government's leading questions.

On remand, the Virginia Supreme Court decided that the statement's presumptive unreliability could not be rebutted, and overturned the defendant's conviction. Lilly v. Commonwealth, 258 Va. 548, 523 S.E.2d 208 (Va. 1999).

further readings

Hall, Kermit L. 1992. Oxford Companion to the Supreme Court of the United States. New York & Oxford: Oxford University Press.

Hall, Kermit L. 2002. Oxford Companion to American Law. New York & Oxford: Oxford University Press.

cross-references

Criminal Procedure.

CONFRONTATION

The seminar known as Confrontation, designed to foster discussion and overcome intellectual isolation engendered by institutional divisions in French psychoanalysis, was created by René Major and Dominique Geahchan in 1973. It represented an effort to develop a non-sectarian forum for discussion and debate among analysts and to bring psychoanalysis into contact with related disciplines.

At the time, four psychoanalytic institutions were operating in France. The Société Psychanalytique de Paris (SPP) and training institute was the first to be founded and the progenitor of the others; there was also the Association Psychanalytique de France (APF). Members of that organization helped Jacques Lacan to establish theÉcole Freudienne de Paris in 1964 while a schism in that group had led five years later to the founding of what was known as the Quatrième Groupe. The various splits had precipitated considerable resentment amongst French analysts, especially after the International Psychoanalytic Association (IPA) pointedly refused to recognize Lacan or Fran-çoise Dolto as training analysts. The resulting climate of divisiveness favored dogmatism.

Major and Geahchan belonged to the Paris society; the former was director of the training institute. Attendees at the first seminar brought Wladimir Granoff, Serge Leclaire, and François Perrier before institute members, including Nicolas Abraham, Denise Braunschweig, Alain de Mijolla, Jacques Mynard, Michel Neyraut, Catherine Parat, Maria Torok, Serge Viderman; analysts from the three other groups also attended. Subsequent meetings took place at the Maison de la Chimie and at the Maison des Polytechniciens.

Thus there developed an extensive exchange of ideas, after years of relative isolation, among analysts such as Piera Aulagnier, Jean Clavreul, Jean Laplanche, Maud and Octave Mannoni, Michèle Montrelay, Jean-Bertrand Pontalis, Elisabeth Roudinesco, François Roustang, Moustapha Safouan, Conrad Stein, and Nathalie Zaltzman. Dialogue also took the form of meetings with philosophers, mathematicians, historians, and linguists—among them Jean Baudrillard, Catherine Clément, Jacques Derrida, Serge Doubrovsky, Luce Irigaray, Sarah Kofman, Philippe Lacoue-Labarthe, Jean Claude Milner, Jean-Luc Nancy, and Jean Petitot.

By 1975 these seminars became a site of intellectual exchange that considered psychoanalysis in relation to literature, politics, law, and religions through investigations of little-studied themes. Well-known analysts attended these meetings, regardless of their institutional affiliation, in an atmosphere of openness that encouraged debate on the merits of the various idioms that were then developing what might be more broadly construed as the language of psychoanalysis. The seminars also led to various publications under the imprints ofÉditions Confrontation andÉditions Aubier Montaigne.

Memorable seminars included one that, for the first time in France, brought to light the situation of psychoanalysis in Argentina and Brazil during a period of dictatorship and human rights abuse. Another concerned The Post Card, re-igniting the dispute initiated by Lacan's "Seminar on 'The Purloined Letter'" and Derrida's interpretation of it. An Anglo-French meeting debated the relationship of psychoanalysis and deconstructionism, analytic philosophy, and feminism; it brought together Hélène Cixous, Jacques Derrida, Antoinette Fouque, Serge Leclaire, and Juliet Mitchell. Another seminar, in Italy with Armando Bauleo, concerned politics and society.

Neither an institute nor training program vis-à-vis clinical practice, the Confrontation seminars realized in embryonic form Freud's hope, expressed in The Question of Lay Analysis, for new post-graduate institutions that would enable analysts to acquire a broader base of knowledge for understanding science and culture. The seminars ended in May 1983, with the death of Dominique Geahchan.

In a larger context, Confrontation was a first step toward a broader forum for analytic thought outside of conventional institutes. At the Collège International de Philosophie, René Major directed a colloquium on "Lacan and the Philosophers" in 1990. In 1997, after a similar meeting held upon publication of Helena Besserman Vianna's book on Brazil, Major called for an international conference. This became the first Estates General of Psychoanalysis, held at the Sorbonne in the year 2000, with representative from thirty-three countries and the ultimate aim of creating a European-based institute of advanced studies in psychoanalysis.

Chantal Talagrand

See also: Cahiers Confrontation, Les.

Bibliography

Major, René. (1991). Lacan avec Derrida. Paris:Éditions Mentha.

Besserman Vianna, Helena. (1995). N 'en parlezà personne. La psychanalyse face à la dictature et à la torture. Paris:Éditions l'Harmattan.

Collège International de Philosophie. (1991). Lacan avec les philosophes. Paris: Editions Albin Michel.